COVID-19: Family Law Update

In these uncertain times, we understand that parents who are continuing to co-parent in a shared parenting or joint parenting regime are faced with new and increased fears and challenges in parenting young children.

As it is not client-specific, this document is merely information and not legal advice.  Before implementing any steps, we urge you to seek legal advice to confirm that those steps are appropriate at the current time and in light of your specific circumstances.  Our main office contacts for this topic are at the bottom of this document.

The Alberta Court of Queen’s Bench has adjourned all matters and will not be hearing new applications until after May 1, 2020. Additionally, the Provincial Court of Alberta has adjourned all matters until May 22, 2020. At this time, the Court is only hearing applications that qualify as urgent and emergent.

While we have little direction from the Courts and the Government of Alberta with respect to how COVID-19 is impacting co-parenting regimes, it is evident that the Courts will not be hearing matters involving issues of co-parenting and COVID-19 at this time unless it deems the same to qualify as an emergency. Orders with respect to parenting, custody, child support and spousal support remain in effect and unvaried even in these circumstances. As such, we encourage all parents, to the best of their abilities, to continue parenting pursuant to any Order, while being mindful and respectful of each parent’s concerns, fears and individual circumstances.

PARENTING AND CUSTODY

Recently, the Ontario Superior Court issued an endorsement with respect to urgent matters since COVID-19 measures were put in place in the Province of Ontario. In Ribeiro v Wright, 2020 ONSC 1829 (“Ribeiro”), the Applicant submitted an Application on March 22, 2020 to suspend all in-person access with the Respondent as a result of COVID-19. The trial judge has not authorized the matter to proceed as urgent at this time.

Justice A. Pazaratz took the opportunity to address the fact that children require love and support from both parents; particularly within this difficult time and existing parenting arrangements should be presumed to continue subject to any necessary modification to follow COVID-19 precautions. These modifications may apply, for example, in the event one parent is in fourteen (14) day isolation as a result of travel or personal illness. In Ribeiro, one party brought the application believing that the other would not obey social distancing policies put into place. While the Court found that the matter was not urgent, it did express strongly that reckless exposure to COVID-19 would not be tolerated.

Similarly, while not binding on Alberta Courts, the Justice in Ribeiro noted that an emergency application may not result in an urgent hearing, but in assessing the same, the court may consider the following:

• The parent initiating an urgent motion will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols;
• The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.;
• Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner;
• The Court will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

You can read the full case here.

CHILD SUPPORT and PARTNER/SPOUSAL SUPPORT

While child support and partner/spousal support orders remain in force, we understand that many employment opportunities are being greatly impacted by COVID-19.  With respect to spousal support and child support payments, in the event that income is interrupted or reduced as a result of COVID-19, we again encourage parties to discuss the matter and come to a resolution.

These discussions may be based on a temporary timeline to handle the economic implications of the circumstances, but each party should take into consideration the impact this has on the other. In the event your employment has been effected and your income is being reduced, terminated, or supplemented by employment insurance, the payments as required by a Court Order may be difficult, if not impossible, to continue. With that being said, the other parent that depends on these payments in their day-to-day is also greatly impacted by this. As such, parties should communicate openly and come up with a plan to move forward whether that be a suspension of payment or reduction of payments that each party can continue to rely upon.

CONCLUSION

We encourage parties to communicate to come up with strategies in a civil and respectful manner. However, all matters impacting families at this time are dependent on each party’s individual circumstances and stressful times may lead to heightened conflict. We understand that parties should be aware of their rights and how these rights may be impacted by COVID-19. We encourage you to keep communication open. However, should you have specific questions about your individual rights, please contact a lawyer to discuss further.

For more information on these topics or any other matters please contact one of the below lawyers from Bryan & Company LLP and it would be our pleasure to assist.