The main discussion, at least for this article, stems around the practice of “self-isolation” and exchanging of children between parents. The common theme thus far is criticism about the opposing parent’s inability to follow COVID-19 health protocols set by the public health authority with the proposed remedy being that parent’s parenting time being suspended temporarily during the pandemic. It is likely that, in some cases, a parent has unilaterally enforced the proposed remedy against the opposing parent, without direction from the Courts.

Even though Courts across Canada have been temporarily shut down in adherence of public health recommendations, urgent matters have proceeded. One of the first Courts to provide guidance was the Hamilton Superior Court of Justice, Family Court in the case of Ribeiro v Wright, 2020 ONSC 1829. His Honour Justice Pazaratz provided guidance in a four-page judgment on an Emergency Notice of Motion to suspend the parenting time of the father who had access, which in B.C. is referred to as parenting time, on alternate weekends. The judgment is worth the read and concisely outlines the competing issues at stake and applies the current “COVID Parenting Problems” to foundational fundamental family law principles to reach a common sense solution, which is that during such unprecedented times, parents now more than ever need to co-operate and communicate with the best interest of the child at heart and put aside personal quorums and indifferences. This case has been cited by numerous other Courts across Canada, including the Supreme Court of British Columbia, with judges taking notice of the decision and citing various paragraphs and essentially adopting equivalent positions.

In the Provincial Court of British Columbia in the case of J.W. v C.H., 2020 B.C.PC. 52, the Honourable Judge Lee pronounced on whether an Application for an Urgent Hearing was in fact “urgent” and deserving of a hearing. The application was granted but only with respect to the issue of the “return of the child”. Notice to the Professional Public No. 19 was referenced which, among other things, noted that, with respect to Family Law Case, only the hearing of Urgent matters would proceed and only by teleconference. An exhaustive list provided what the Court would deem urgent, which includes “urgent orders involving parenting time, contact with a child or communication between parties”. His Honour referenced a decision out of the Ontario Superior Court of Thomas v Wohleber, 2020 ONSC 1965 which identified four factors to determine, if in fact, an application was of an urgent nature – in summary the Court stated at paragraph 11 that “to be considered urgent, there must be some issue of immediate concern.” The immediate concern, in this case, and likely for many other parents, is the ability of the opposing party to comply with COVID-19 health protocols established by the Provincial Health Officer. The inability to follow said protocols qualifies as an issue within the scope of “the best interest of the child”, which is enumerated in section 37 of B.C.’s Family Law Act. In advancing any such Application to Obtain an Order on an Urgent basis in respect to a parent not complying with COVID-19 protocols, specific examples of behaviour and/or actions beyond mere suspicion must be provided in the form of affidavit evidence, which was also the position in Ribeiro v Wright.

Another case out of the Provincial Court of British Columbia was the matter of N.J.B. v S.F., 2020 B.C.P.C. 53. This case was an Application for an Urgent Hearing and a Notice of Motion filed by the mother and heard on March 30th, 2020 with a judgment provided on April 1st, 2020 by the Honourable Judge R.P. McQuillan. This decision came one day before the judgment in J.W. v C.H. The issue to be heard in this case was again a denial of parenting time of a parent because of the COVID-19 health crisis. The father advanced recommendations of Dr. Michael Elterman and her Honour took judicial notice of the guidelines which discussed parenting arrangements and parenting time during the COVID-19 health pandemic. In this case, as in others, there was an existing order in place that provided for parenting time. Her Honour concluded that the parenting time, as per the initial Order, is to be complied with as there was not sufficient evidence in this particular case showing that the mother or her family were not complying with COVID-19 protocols. Again, like in similar decisions, the Court stated the importance of parties communicating effectively during these unprecedented times and being open and transparent about each other’s household protocols and health of persons in their households and put the best interest and well-being of the child first.

The silver lining of COVID-19 is that it has brought a lot families closer together, it has provided individuals with a period of rest as the entire world is on pause, and we see reports of the environment making a much needed come-back from the devastation humans have done to it. If anything, this health pandemic should have opened a lot of people’s eyes to the global connectedness of the world and the impact of our individual decisions on the collective whole. Shared parenting is no ease task between individuals not seeing eye to eye and now, more than ever, parents have to put aside anger, hate and frustration and clearly communicate and mutually respect one another for the best interest of their children.

Learn more about parenting time and travel during COVID-19 by reading our Article COVID-19 and Traveling with Children.

To assist with writing this article, the writer has read the following cases:

Well, in a judgment released June 9, 2020 in the case of Hasan v Hasan, 2020 BCSC 862, the Honourable Justice Shergill heard an Application for an Urgent Hearing which dealt with two of the parties children and the father’s trips to the United States in the midst of the Covid-19 pandemic. The year previous, the parties had entered into a Consent Order with a variety of terms. The Consent Order permitted travel outside of Canada with the other party providing travel authorization at least one week prior to travel. With respect to parental responsibilities, it provided that the parties would discuss significant decisions regarding health, education, religious instruction and general welfare of the children. In the event that the parties could not reach an agreement on a major decision the parties were obligated to attend mediation or participate in some form of dispute resolution process. The Consent Order also required that the parties attend mediation prior to applying to Court should any issues arise from the Consent Order.

Justice Shergill permitted the Claimant’s family law Urgent Hearing notwithstanding the requirement to first attempt mediation to resolve the dispute. The reason being that the decision to travel during the pandemic when the government advised against all non-essential travel concerned the children’s health and therefore is a major decision. The Respondent attempted to argue that the Claimant’s Application should not be heard because of the “mediate first” clause. But her Honour found that the Respondent could not rely a term of the Order for protection that he was also in clear violation of, that being the clauses to discuss major health concerns and receive a “consent to travel authorization form” from the other parent.

The starting presumption with existing orders regarding parenting arrangements is that arrangements in a parenting order are in the best interest of the children. Where one party wishes to change a parenting order, they have to provide specific proof that the needs or circumstance of the child have changed since the making of the order. Therefore, the onus was on the Applicant to evidence that the “needs and circumstances” of the children have changed since the making of the order.

In this particular case, the Order which the Applicant sought to change was entered into in May of 2019 by consent of both parties. Covid-19 was declared a pandemic in March of 2020 and the government of Canada shortly after placed a 30-day restriction on all non-essential travel. The Respondent father had strong family ties in Virginia and had taken trips with the children even after the restrictions were put in place. So on the face of it, in March of 2020, one could certainly empathize with the mother’s anxiety around the trips to the neighbouring U.S. given the Covid-19 pandemic. Her Honour found on the facts that the non-essential international travel during the pandemic was not in the children’s best interest and continued trips would expose the children to unnecessary risks, whether international or domestic travel. Her Honour in fact found that the continued exposure to the children of travelling through airports or on airplanes to be reckless. As such, the evidence in fact supported that a “change in needs or circumstances” of the children had occurred and a variation of the Consent Order was necessary to protect the best interest of the children.

The remedy that achieved the delicate balancing act of protecting the children while also attempting to respect both parents desires was a travel restriction on international or domestic travel and a restriction on attending airports or being aboard airplanes without written consent from the other parent or a further court order.

This case illustrates the importance of clear cooperative communication between separating parents. Most times, common sense prevails but this is sometimes hard to do when one is in the thick of things. Read more about COVID-19 and parenting time by visiting Covid-19, Parenting Time, and the best interest of the Child. 

The writer relied on the following case:
Hasan v Hasan,, 2020 BCSC 862