Co-parenting during the pandemic

It’s the question I’ve been asked more than any other since the age of social distancing began: how does this affect parenting time with my children?

The answer, as reported in the Chronicle Herald:

While safety precautions must be kept in mind, court orders and agreements for parenting time must be followed by both parents:

Shared parenting can be done safely during the pandemic by following public health guidance, says a Nova Scotia family law expert.

“As long as both parents follow the public health directives they should continue to comply with their parenting orders and agreements,” said Rollie Thompson, a Dalhousie University law professor.

The province’s chief medical officer of health Dr. Robert Strang created unnecessary confusion for co-parents on March 31 when he said in his daily briefing that children should remain in one home during the COVID-19 lockdown, Thompson said.

Strang backtracked the next day, acknowledging he was offering a public health perspective and reminded parents to follow court orders and parenting arrangements. He said parents could get advice from a lawyer or Nova Scotia Legal Aid and “if possible and safe to do so … should develop a plan with the understanding that moving about in the community and going from house to house does increase the risk of transmission of COVID-19.”

“I think Dr. Strang should stick to public health and stay away from family law,” said Thompson.

Thompson, an expert in family law, co-wrote the federal government’s Spousal Support Advisory Guidelines. He said that the vast majority of co-parents in the province can be counted on to follow the social distancing rules. That includes moving kids from one parent’s home to another.

Thompson’s advice to co-parents and their kids is to follow four instructions during the pandemic:

– continue to comply with parenting orders and agreements;

– comply with public health directives to protect your health;

– when health or other unexpected problems arise, be flexible to do what’s in the best interests of your children;

– and above all, work together and avoid conflict.

[…]

The Nova Scotia Judiciary said that existing court orders around parenting time continue to be in effect during the COVID-19 crisis. Jennifer Stairs, a spokeswoman for the judiciary, said those orders — including those involving custody, access, contact and parenting — could be negotiated as long as all parties involved agree.

Unfortunately, I’ve already been forced to deal with several cases where a parent either believes the COVID-19 pandemic means they can’t allow their child to spend time with the other parent, or where they’re using it as an excuse to deny access.

If this is happening to you, contact your lawyer immediately. If you aren’t yet represented by counsel, Nova Scotia Legal Aid may be of assistance:

Nova Scotia Legal Aid is offering help for parents trying to wade through the confusion. Lawyers will process emergency family matters for people who qualify for legal aid. Free twice-weekly online chats are also being offered on the Nova Scotia Legal Aid website. Lawyers will be manning the online discussions on family law issues. They are scheduled Tuesday and Thursday, from 3 p.m. to 5 p.m. Those who don’t qualify for legal aid can access family summary advice at all courthouses through scheduled telephone appointments.

The end of “custody” and “access”

Proposed changes to the federal Divorce Act will do away with these often-contentious terms, following the lead of legislation in several provinces:

Bill C-78 passed first reading in the House of Commons on Tuesday. It would eliminate terms such as “custody” and “access” and replace them with others such as “parenting orders” and “parenting time.” The bill would amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act.

The legislation also includes relocation guidelines — when divorced parents want to relocate to another jurisdiction, at a remove from the other custodial parent — with a shifting onus depending on the child care arrangements pending the relocation; and, parents may be required to attend a family dispute resolution process.

[…]

What to do in the circumstances of proposed parental relocation has been a controversial issue, but the new guidelines will create a shifting onus.

“If you have primary care of the child, the onus is on the other parent” or the objector, to give reasons for his or her objections to the proposed relocation. However, “if you have equal custody, the onus is on the person relocating,” Epstein says, to justify the relocation. The new legislation would essentially override the Supreme Court of Canada’s decision in Gordon v. Goertz, he says, “and places front-and-centre the reason for the proposed relocation.”

The bill does not promote joint parenting, however; “I think those who have been clamouring for family law reform for more than 20 years, particularly fathers’ rights groups, which argue for joint custody, are not going to see that in the bill.” Neither the government nor a fair majority of the family law bar support that, and in the United States, he adds, many jurisdictions that had moved toward a presumption of joint custody have since abandoned it.

I’ll have to see how these changes work in practice, but for now I’m with the lawyers quoted by CBC News, who say they’re cautiously optimistic.  Hopefully this will go some way toward reducing conflict between the parties, and speed up what can be a slow and stressful court process.

​Lawrence Pinsky, partner in the Winnipeg firm Taylor McCaffrey and chair of the Canadian Bar Association’s family law section, said the proposed changes represent a significant step forward.

Pinsky penned a letter to Wilson-Raybould in late December 2017 that outlined the concerns of the CBA’s family lawyers.

“They’re either addressed or there was a solid attempt made to address them,” said Pinsky. “It may be that if I had the pen and was writing the legislation, I might have done it slightly different in certain respects. But they did address many of the changes we called for and we’re pleased with … those changes overall.”

The proposed changes fall into six main areas:

  • 1) ​Replace terms such as “custody” and “access” with words like “parenting orders” and “parenting time,” to make the language less adversarial.
  • 2) Set out criteria that help define the best interests of the child.
  • 3) Compel lawyers and paralegals to encourage clients to use family-dispute resolution services such as mediation instead of courts.
  • 4) Give courts measures to address family violence.
  • 5) Establish guidelines for when one parent wants to relocate with a child.
  • 6) Make it easier for people to collect support payments.

Hilary Linton, a Toronto family lawyer now practising full time as a mediator and arbitrator, said the bill “is bringing divorce law in Canada up to speed with what’s already happening under provincial law.”

For example, Linton said, lawyers in Ontario have turned to the Children’s Law Reform Act for guidance on establishing the best interests of the child because the federal act doesn’t provide it.

“The Divorce Act has now become a very articulate and even eloquent piece of legislation that’s written for the people to whom it applies. I love it because it’s written in plain English, and it’s really — as mediators — codifying what we’ve been doing all along.”

[…]

The act stopped short of establishing a presumption of equal shared parenting between parents, which — although more common than ever — is not established as a starting point. Fathers’ rights organizations like the Canadian Association for Equality say the bill doesn’t go far enough.

Brian Ludmer, a Toronto lawyer and spokesperson for CAFE, said establishing an assumption of equal shared parenting would alleviate the “divorce war” mentality that often pits parents against each other.

But ​Pinsky, of the Canadian Bar Association, said establishing that presumption is not appropriate in a system that centres on the needs of the child.

“We in the CBA say that you start in the position of the individual child, because there’s not a one-size-fits-all. Different children have different temperaments, and some can handle situations that other children can’t.

 

The end of “custody” and “access”

A survey of Canadian family lawyers shows most opposed to a presumption that children should spend close to equal time with their divorced or separated parents, but overwhelming support for changing the outdated, confrontational terms currently used to describe the “winners” and “losers” in cases involving children:

Canadian family law lawyers and judges reported that an average of 46 per cent of their cases involve some form of equal parenting time (“joint physical custody,” “shared custody” or “shared residence”), in which the children spend at least 40 per cent of their time with each parent. Further, an average of 68 per cent of their cases involve some form of shared parenting (“joint legal custody” or “joint guardianship”). Thus, this survey suggests that roughly two thirds of cases involve some form of what may be broadly viewed as shared parenting.

The respondents also reported a substantial increase in the use of roughly equal parenting time over the past five years (31 per cent said that this had increased substantially, 51 per cent increased somewhat, 17 per cent said it stayed about the same and only one per cent report reported a decrease). Equal time cases, however, are still a minority of shared parenting cases. In only 13 per cent of their cases was there a provision for limited contact with one parent, and respondents report that there is no provision for contact with a parent in only three per cent of their cases.

A clear majority of the respondents (77 per cent) did not support the enactment of a presumption of equal parenting time, as proposed in Bill C-560. However, a substantial majority of the respondents (78 per cent) support the amendment of the Divorce Act to use language other than “custody” and “access,” such as through the of phraseology as “parental responsibility,” “parenting time” or other similar concepts. Of note, the majority of respondents (55 per cent) were from BC or Alberta, where the provincial legislation has already been reformed to include presumptions of mutual parental guardianship and to use the concepts of “parental responsibilities” and “parenting time” as the basis for making post-separation parenting arrangements.

Many of the respondents explained the need to change the language of “custody” and “access” because those terms are “adversarial” and “proprietary.” One respondent commented that “custody … implies that the custodial parent has possession, or control, or ownership rights to the children, while the access parent has something substantially less.” Another observed that they “are extremely dated terms and concepts.”

However, many respondents expressed concern that enacting legislation to a presumption of equal parenting time could cause harm to children. One wrote: “some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.” Another stated: “presumptions have no place in the formulation of the best interests of the child … this is fact-dependent and should be based on a holistic view and the unique factual circumstances implicit with the determination.”