TORONTO -- With public health officials urging people to quarantine in their homes, divorced or separated parents who share custody of their children are faced with the unprecedented challenge of settling on a new arrangement in the midst of a pandemic.

Nadine Russell, an associate of family law at Siskinds LLP, said she has received calls from clients asking her for advice on how they should work out visitations with their former partners in light of the current health emergency.

“I think everyone is starting to take it more seriously and now’s the time when we're seeing more situations where parents are reluctant to send the child for access,” she told during a telephone interview from London, Ont. in late March.

Russell said most of the questions she’s received have been from one parent who is concerned the other parent isn’t taking proper precautions to protect their children from the virus.

However, other concerns may include if one parent has an increased risk of exposure because they’re still going in to work, if there are other step-children travelling between families, and if there are elderly or other members with underlying medical conditions at a higher risk of severe outcomes from the disease.

While there isn’t one easy answer and every family’s case is different, Russell pointed to a recent decision by the Ontario Superior Court that contains some guiding principles on how lawyers should advise their clients in the current health crisis.

Existing arrangements

According to the court decision, there should be the presumption that existing parenting arrangements and schedules should continue and that both parents should take the necessary precautions to ensure they’re adhering to public health guidelines, such as physical distancing.

“If you have a child who’s going back and forth between two homes, and both parents are following the social distancing guidelines, then I’m not sure that’s really a riskier situation for the child than living in one house,” Russell said.

Problems can arise, however, if one parent suspects the other one is not taking enough protective measures.

“I would say if you if you have another parent who you think is not following the guidelines, now's the time to have really detailed discussions about what you're doing in your home and try and get them on board,” Russell said.

If there is a case in which both parents agree their child should live with only one of them for the duration of the quarantine, family lawyer Tanya Davies explains that, typically, the parent who is not providing the primary residence for the child would pay more in child support.

However, if there is a shared child-support arrangement that suddenly changes, so one parent is taking care of the child full-time, Davies said that primary residence parent would be entitled to the full amount of child support.

Like Russell, Davies did stress that parents should strive to follow their existing arrangements.

“The courts are telling us that parenting arrangements should not be disturbed since it is not in the best interest of the children,” she told CTV’s Your Morning.

If there is a situation in which one of the child’s parents has lost their job because of the COVID-19 emergency, Davies said both parents and their lawyers should be flexible in negotiating a new agreement for paying child support. 

Finding solutions

“I think it's really important for parents to come up with solutions, we need to all be solution-focused.”

Russell said all parties may not be 100 per cent happy with the modified arrangement during this period, but it’s still better to come up with a temporary workaround than to take the other parent to court.

Because many courts have closed and only urgent matters are being heard, Russell said families may have difficulty scheduling a hearing before a judge. She also said parents who are struggling to reach an agreement can still make use of family law mediators via telephone or video conference to help them come up with a solution.

“For two parents who aren’t seeing eye-to-eye, there are still options and ways to try to come up with solutions,” she said.

Russell also stressed that parents should strive to ensure their children are able to see both parents during this time because it’s still unknown how long the pandemic could last. She said it could be harmful for the child if they’re unable to see one of their parents for an extended period of time.

Guidance on shared custody

Russell said families can refer to the Ontario Superior Court’s recent decision for guidance on how to approach shared custody during a pandemic.

  • The court says existing parenting arrangements and schedules should continue with modifications to ensure COVID-19 precautions, such as physical distancing, are being followed.
  • In some cases, the court says parents may have to forgo their time with the child if they have to self-isolate because they’ve become ill, they’ve travelled abroad, or they’ve been exposed to someone with the illness.
  • The Ontario Superior Court judge says there should zero tolerance in the eyes of the court for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
  • There may need to be changes to transportation, exchange locations, or any terms of supervision, according to the court.
  • In step-families, the court says parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former or new relationships.
  • For the sake of the child, all parties must find ways to maintain important parental relationships.