In Part I of our Parenting During a Pandemic Series, we addressed how to co-parent effectively during the COVID-19 pandemic. Part I can be found here.
Part II will address less common, but more serious situations some parents may find themselves in. This post will provide you with general legal information, however if you find yourself in any of these cases, we strongly recommend you seek legal advice as these are complex legal issues and the advice applicable to your individual situation will be specific to your circumstances.
In this blog post we will address the following issues that can lead parents to making difficult decisions:
- Denying Parenting Time;
- Relocation; and
- Family Violence.
Although the British Columbia court system (BC Provincial Court, BC Supreme Court and BC Court of Appeal) are only hearing urgent matters for the time being, it is likely that if you are facing any of the issues addressed below, you may be able to qualify as an “urgent matter” and be heard by a judge. This will likely happen via teleconference. We will provide more information on this issue in a future blog post.
Denying Parenting Time
Sections 61 and 62 of the Family Law Act (“FLA”) dictate when a parent can deny parenting time and the remedies available to the parent who has been denied time, should the denial be unjustified. A denial of parenting time is justified under the FLA in the following circumstances:
(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;
(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;
(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;
(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;
(e) the applicant
(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and
(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;
(f) other circumstances the court considers to be sufficient justification for the denial.
From the above, you will see that parenting time should only be denied in very extenuating circumstances. If parenting time is unjustifiably denied, the court may:
- order a fine against the party who denied the parenting time;
- compensatory parenting time for the parent who was denied;
- that the parties and/or the child attend counselling;
- that the transition of parenting time be supervised; or
- other remedies that have a negative consequence for who denied parenting time.
If you are seeking to deny parenting time due to your child being ill, you must have a written note from the child’s doctor or a nurse explaining that they are too ill to exercise time with the other parent. Given the current demand on our health care system due to COVID-19, you may wish to call your doctor’s office and see if they can provide you with a note electronically or see a doctor through an online consultation.
WARNING: If you are seeking to deny parenting time on the presumption that the other parent may be ill, tread carefully. If the other parent is returning from an international trip, it may be reasonable for the children to stay with you while your co-parent self quarantines for the mandated 14 days. However, if there is no reason to assume that the other parent may have COVID-19 and is not experiencing any symptoms, it is likely not appropriate for parenting time to be denied.
If there is a question of your children’s safety, you should discuss with the other parent if you are able to. It is very likely that they are equally concerned about the children’s safety and are willing to take reasonable precautions to ensure the same. You can read more about this in Part I: Pandemic Parenting 101.
Relocation
The COVID-19 pandemic and changing economy may lead to some parents being required to relocate. They may need to relocate because they are unable to afford their current housing, they have employment in a different area, or they are seeking to move closer to family support. This type of move will have a significant impact on the children’s relationship with the non-moving parent and these decisions are not to be made lightly.
If a parent wishes to relocate, either with or without their children, they must provide the other parent, or any other guardian of the child, at least 60 days’ notice of their planned relocation. This notice must contain the date of the proposed relocation and where they intend to relocate to. The court will provide an exemption to this in cases where there is a risk of family violence if the notice was to be provided or if the child has no ongoing relationship with the other parent/guardian.
The non-relocating parent has 30 days from receiving the notice to object. If they do not object, the parent who wishes to relocate is free to do so. If they do object, the party wishing to relocate will be unable to until the Court orders otherwise. In determining whether a parent can relocate, the Court will consider the following:
- Is it in the children’s best interests to relocate?
- Is the proposed relocation being made in good faith?
- Has the relocating guardian proposed reasonable and workable arrangements to preserve the relationship between the child and the other parent or guardians?
INTERIM ORDERS: Given the shutdown of the courts, a parent will be unable to have their trial regarding their relocation application heard for likely many months. An applicant can make an application for an “interim order” meaning they can relocate on an temporary basis until a final decision can be made. An interim application may be heard by the Courts during the COVID-19 pandemic if the parent wishing to relocate can prove that the relocation is urgent.
Interim relocation orders are very rare. If you are seeking to relocate under urgent circumstances, please seek legal advice.
Family Violence During a Pandemic
COVID-19 brings a high level of risk and anxiety to our global community. However, it raises particularly dangerous and difficult situations to those who experience family violence. Pandemic lockdowns can lead to some victims being forced to remain in situations which may be unsafe. While pressure to stay home and “flatten the curve” mounts, some parents may be facing the difficult decision of where the safest place is for themselves and their children.
Although the Courts are temporarily limiting which matters they are hearing, urgent protection orders can still be made on a without notice basis. If you or your children are at risk or likely at risk of experiencing family violence the Court can order protection provisions requiring the perpetrator of family violence to have no communication with the at-risk family member(s) or not attend at or near the residence of an at-risk family member.
If you are in danger, you should contact the police for immediate assistance. For more information on if you would likely be granted a protection order, please seek legal advice.
This blog post addresses very serious family law issues that may be exacerbated due to COVID-19. As stated above, if you are considering your options relating to any of the above, we highly recommend that you contact a member of our Family Law Group to inform you of your legal rights and obligations.
