Navigating Parenting during COVID-19 - Overview of the Leading Case out of the Court of Queen's Bench of Alberta

During these unprecedented times, the Alberta Courts had yet to weigh in on the parenting issues plaguing Alberta parents as they navigate the impact this pandemic has had on their families. SAS v LAS, 2020 ABQB 287 is the first case in Alberta to address these concerns.

The Honourable Mr. Justice Robert A. Graesser discussed the issues parents are now finding commonplace in many parenting situations impacted by the COVID-19 pandemic, such as: the extent to which one parent should be able to expose the children and the other parent to risks the other parent finds acceptable; the scope or definition of cohorts (family members or close friends becoming a single unit for the purposes of contact); and, how and when to address these issues in the face of existing court orders.

Considering persuasive Canadian cases, specifically Ribeiro v Wright, 2020 ONSC 1829, Justice Graesser outlined the parenting issues that would be dealt with on a case-by case basis and the process to be followed:

1. "the parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols;
2. the parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to - including, social distancing; use of disinfectants; compliance with public safety directives, etc.;
3. both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in child-focused manner; and
4. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home,"

"Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some problem-solving before they initiate urgent court proceedings."

Justice Graesser discussed the expectation that parents should be acting in good faith in their attempts to communicate with the other parent in an effort to arrive a reasonable solution, which includes working hard to find solutions that will firstly keep the children as safe as reasonably possible and to maximize contact with both parents so that the parent-child relationships do not suffer inordinately during this pandemic.

In summary, Justice Graessar outlined the Alberta standard concluding the following:

"1.     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.

2.     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.

3.     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;

4.     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 a temporary change in the order;

5.     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;

6.     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;

7.     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; and

8.     Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and

9.  Non-compliant parents can expect no second chances."

Foster LLP is here to support parents and families during this time. Please do not hesitate to contact us for more information and resources.

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