Parenting during the pandemic: a Judge weighs in

Further to this post, we now have the first of what I suspect will be many Nova Scotia court decisions dealing with people using COVID-19, and social distancing measures, as an excuse to keep children away from the other parent: McNeil v. Christie, 2020 NSSC 145.

The Honourable Justice Lee Anne MacLeod-Archer heard the case on an emergency basis. The father (McNeil) was allowed unsupervised daytime access with his son, but refused to return him following a visit earlier this month. He argues that the child is in danger from COVID-19, partly because the mother’s boyfriend just returned to Nova Scotia from another province and immediately moved in.

Justice Macleod-Archer determined that the mother (Christie) was irresponsible in allowing the boyfriend to move straight in, without a period of self-isolation. But she also ruled that McNeil was manufacturing an excuse to keep the child in his care:

[12]        The evidence doesn’t satisfy me that having her boyfriend return to the home to provide childcare, without a period of self-quarantine, was reasonable in the circumstances.    

[13]        However, I’m satisfied that Mr. McNeil manufactured a reason to keep the child with him, taking advantage of the current covid-19 health directives.  He did so for two reasons:  1) he feels he should have been granted overnight and extended parenting time with the child already; and 2) he learned that Ms. Christie’s boyfriend had returned to Cape Breton and was living with her and the child. 

An interim order was made, allowing the child is to stay with his father until the boyfriend has quarantined for 14 days. Then, he is to be promptly returned to the mother’s care – and his in-person access shall be suspended:

[14]        Given the state of emergency, the fact that someone living in Ms. Christie’s home didn’t properly quarantine after returning from out-of-province, and that police and child welfare checks have raised no alarms with the child in Mr. McNeil’s care to date, I direct that the child stay with Mr. McNeil until Sunday, April 19, 2020.  That will allow Ms. Christie’s boyfriend a full 14 days since his return from western Canada.  If he’s showing no signs of illness by April 19th, Ms. Christie will text Mr. McNeil to notify him, and the child will be returned to her care at noon.  She will drive to Mr. McNeil’s home, where she will text to announce her arrival, and wait in the vehicle in the driveway.  The child will be sent out to his mother.  There will be no communication between the parties.

[15]        In the event that Ms. Christie’s boyfriend develops symptoms of covid-19 before the child is returned to her care, she will notify Mr. McNeil by text immediately.  In that event, the child will remain with Mr. McNeil pending review by the court.

[16]        Once the child is returned to Ms. Christie’s care, Mr. McNeil’s in-person parenting time with the child will be suspended until further review by the court.  He may have electronic communication with the child (messenger video, skype, facetime, zoom, whatsapp, etc), to be held every Sunday at noon and Thursday at 6 pm.  Ms. Christie must make immediate arrangements to obtain the necessary software/app/devices to enable this to occur.  She will initiate contact, and she will supervise the child’s contact with his father from the same room.  The parenting time will be child-focused, with no adult conversation or interrogation of the child.  Ms. Christie will not interfere with the call unless inappropriate comments are directed to the child (questioning the child about his mother’s activities, who is living with them, etc), in which case the call/connection may be terminated.

On the surface, it looks like the father’s behavior was rewarded in the short term but punished in the long term. He gets to keep his son in his care for several more days, but after that, his parenting time is strictly by phone and video calling apps. If the mother’s boyfriend hadn’t just returned from another province, and had to socially distance himself for 14 days, I suspect an order would have been made immediately returning the child to her home.

Either way: court orders are to be followed as long as no one has tested positive for COVID-19, is showing symptoms, or has returned from outside of the province.

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