COVID-19 and Parenting Time: What are your rights for parenting time during a pandemic?

Two recent cases from the Courts of British Columbia have discussed COVID-19’s effects on a parent’s right to parenting time.

In N.J.B v S.F., 2020 BCPC 53 (April 1, 2020) a father began denying the mother parenting time.  His justification for doing so was based on the changed landscape arising from the COVID-19 crisis and the health and safety issues arising from it. More specifically, the father asserted that the mother is unlikely to be able to comply with social and physical distancing measures and other protocols currently recommended by public health authorities.

The facts and procedural history are as follows:

The parents separated in October 2018.

After the parents separated the mother’s parents submitted a report to the Ministry of Children and Family Development (the “MCFD”) regarding the mother being unable to care for the child due to the mother’s mental health, parenting skills, and substance abuse.  This report resulted in the MCFD and the father agreeing not to permit the mother to have any unsupervised access to the child.

Over the next few months, the mother and father attended multiple Family Case Conferences, the first being on February 14, 2019, which made orders allowing for the mother to have supervised parenting time.

On March 24, 2020, the father’s lawyer sent a letter to the mother’s lawyer stating that due to concerns related to COVID-19, the mother would not be permitted to exercise her parenting time.  The father had two reason for refusing the mother parenting time.  First, given the mother’s history of mental health challenges, which appear to result in her fabricating ideas and experiencing delusions, the present COVID-19 crisis is likely to impact her mental health further, and cause her to behave in a manner that will pose a risk to the child.  Second, there are seven people who live in the mother’s home.  The father claimed that the large number of people residing in the mother’s home will increase the child’s risk of contracting the virus.

The Courts Decision:

The Court ordered compliance with the parenting order. The father was unable to point to any concrete concerns about the mother and her family’s lack of compliance with COVID-19 protocols.  His concern appears to be based on the mother’s historical, and likely ongoing, challenges with her mental health which has sometimes manifested in paranoid or conspiratorial ideas.  The court accepted that the mother’s variable mental health gives rise to concern, but that concern has been addressed by the fact that all of her parenting is supervised. The court did not find concerns in relation to the mother are any greater under COVID-19 than they were before COVID-19, and as such, ordered compliance with the parenting order.

In another case

In SR v MG, 2020 BCPC 57 (April 7, 2020) a father was denying a mother her agreed to parenting time.  The father’s reason for denying parenting time was due to the mother being a licenced practical nurse.  He believed that her exposure as a nurse to the COVID-19 virus would create undue risk for their child.

In considering a multitude of factors, the Court found the mother to be entitled to her parenting time despite the father’s concerns.  While there was some risk that the mother would catch the virus, it was appropriately mitigated by the mother abiding by the precautions placed upon all front-line workers.

The Court noted that if the child was particularly vulnerable, it would not expose the child to even the slightest risk.

Conclusion from the two cases:

Using COVID-19 as a rationale for not complying with parenting time orders is not prima facie accepted by the Courts.  The parent withholding the child from the other has to supply the Court with concrete evidence which shows that the child is either particularly more vulnerable to COVID-19 or the other parent has created undue risk for the child by disregarding COVID-19 protocols.

 

If you think you may have cause to deny a parenting order due to safety concerns during Covid-19, or if your parenting time is being denied and you would like to discuss your options, call Heath Law LLP or email us.