COVID-19 is an unprecedented situation for everyone and has left many parents wondering how COVID-19 will impact their parenting orders or agreements that were in place before the outbreak of COVID-19, and whether or not one parent’s time with the child or children should be restricted. Fortunately, the Court of Queen’s Bench of Alberta (the superior court of the province) has released a decision and given some firm guidelines about how parenting should proceed during COVID-19.
In SAS v LMS (2020 ABQB 287), the father applied to the Court for a substantial change in parenting due to the COVID-19 pandemic. The Court summarized the principles used in making decision exactly as follows:
- Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith and to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children;
- Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the children and the other parent;
- Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety;
- Whether under the Divorce Act or the Family Law Act, varying existing court orders requires a change in circumstances and will be determined on the basis of the best interests of the child or children. COVID-19 is not an automatic change in circumstances; the party seeking a variation must establish that their family circumstances have been impacted in a way that warrants temporary change in the order;
- The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting. It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct;
- If an application cannot be made because of the urgency of the situation an application by the defaulting party must be made as soon as possible after learning of the emergency;
Applications based on speculation, mistrust, or fear without credible evidence of material non-compliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful; - Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and
- Non-compliant parents can expect no second chances.
An important take-away from this decision is contained in #3 where the Court stated that orders are meant to be followed and that parenting time should not be withheld (unless there are exceptional circumstances). The Court is also very clear that if an application to change parenting is to be heard, then it must have some verifiable evidence on which the Court can rely in making a decision.
The Court in SAS v LMS also stated that “[the Court does] not think the default position should be that the household with the lowest risk level should be the home where the children reside at during the pandemic, with the other parent having virtual access only.”
SAS v LMS was decided on April 24, 2020 and (as of the date of this blog post) remains the leading case in Alberta on how parenting should proceed during COVID-19.
NOTE: This blog post is for general information purposes only and does not constitute legal advice. Should you require legal advice regarding the content of this blog post and how it applies to your situation, please contact the office to schedule an appointment to consult with a family lawyer and they would be happy to assist you.