We have written previously about cases out of Ontario determining parenting rights during COVID-19, with courts weighing a parent’s right to see their child, the best interest of the child in maintaining relationships with each parent, as well as risks presented by the pandemic. In one case, a father’s risky behaviour was deemed significant enough to have him removed from the matrimonial home during the quarantine. In another, a mother’s concern about the risk posed by shuttling her child between homes was outweighed by the need to maintain connections between a child and both parents.

In a recent decision, the Alberta Court of Queen’s Bench has weighed in on the issue, setting the precedent for similar cases in the province.

Parents Managing Well Before COVID-19

The parents in the case at hand had been successfully co-parenting their two children without the need for input from a court since their split in 2013. The father is an accountant and the mother is a nurse, however, she had been off of work on long-term disability. When the mother realized the father was still working at his office, she suggested it would be in the best interest of the children for him to work from home. Failing that, she suggested that they avoid sending the children to stay with him during the pandemic.

Nevertheless, the parents continued to trade off parenting duties on a weekly basis. However, the mother learned from the children that the father had taken them horseback riding in late March and planned to take them again in April. Further, she learned that the children had been attending at the father’s office with him while he had lengthy client meetings. They would wait in a separate room for him during these times. The children also reported a friend/colleague visiting the father’s house regularly, and they indicated the father was failing to follow social distancing guidelines while in the office.

The Mother Denies the Father Access

On April 9th, the mother wrote the father indicating that she would be keeping the children with her the following week, when they would normally go to the father’s house. As a result, the father filed an urgent application seeking the following relief:

  1. Declaring LMS to be in Civil Contempt of Court with respect to the parenting provisions of the Divorce Judgment granted on May 23, 2018;
  2. Varying the Divorce Judgement to provide for police enforcement of the parenting provisions;
  3. Alternatively, varying the Divorce Judgement on an interim basis such that the children resided primarily with SAS for the duration of the pandemic, with LMS having reasonable and generous access;
  4. Make up time for all parenting days missed as a result of LMS failing to follow the Divorce Judgment; and
  5. Costs on a solicitor and own client basis.

Factors to be Considered

The Court considered a variety of factors, which were summariezed as follows:

  • Parents should act reasonably and make attempts to resolve concerns around COVID-19 with each other before taking action in Court. Parents should put the health and safety of their children first.
  • Parents should consider how to minimize risk to children while maximizing contact. If face-to-face contact presents an unnecessary risk, virtual contact should be explored.
  • Parents should follow existing court orders, and avoid unilateral decisions to withhold access unless there is a true threat of imminent risk to a child’s health or safety.
  • Varying existing orders requires a change in circumstance and is determined by the best interests of the child. The pandemic is not a change in circumstance on its own; a parent seeking a variance must establish that family circumstances have sufficiently changed.
  • The onus is on the parent seeking a change to establish the need for a variance.
  • Applications based on mistrust or fear and without credible evidence of non-compliance that poses an unreasonable risk to the children are unlikely to be successful.
  • Respondents must be prepared to commit to meticulous compliance with all COVID-19 safety measures. Non-compliant parents may not get a second chance.

Ultimately the Court turned the matter back to the parents to work out on their own, keeping the best interests of the children in mind. The father was told he needed to demonstrate his ability and willingness to meticulously comply with public health and safety measures. Further, the mother was admonished for making the decision to keep the children from father in defiance of an existing court order. The Court set out three circumstances where such a decision could be forgiven due to the pandemic:

  1. When a parent is diagnosed with COVID-19 and still wants to maintain contact with their children;
  2. Where a parent is displaying symptoms of COVID-19 but will not take steps to get tested;
  3. Where a parent has done or is planning to do something that will put their child in immediate danger.

This decision provides an overview of how courts in Alberta may weigh parenting decisions in light of COVID-19 and provides guidance to parents on how co-parenting decisions should be made during the pandemic.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting plans and child access arrangements following the breakdown of a relationship. We will work with you to ensure that you receive a support award that accurately reflects the true financial positions of the parties. Contact our office today by calling us at 403-910-3000 or contact us online.

A team above all. Above all a team.

1300, 707 7 Ave SW
Calgary, AB, T2P 3H6

Website designed and managed by Umbrella Legal Marketing