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These momentous times we now live in. Even scary. But life goes on and family law issues will not just go away as Ontarians hunker down. What might be the implications of this virus for those embroiled in family law issues such as parenting schedules, custody and access, division of parenting time, and the like?

Sporting and cultural events have been canceled. Conferences are on hold or exclusively online. Employees wherever possible are being encouraged to work from home. Health officials worldwide are calling on people to avoid crowds, to stay at home where at all possible, and definitely to self-quarantine if they have come in contact with someone diagnosed with the virus or who just ‘might’ be infected. How long this will last is anyone’s guess.

The whole idea of keeping to ourselves in one form or another is to prevent the community’s spread of the disease. If you are not at work, not at school, not in groups – well then you have drastically reduced the chances of receiving infection and passing along the infection if you are unknowingly already infected.

From what I have been reading, it would appear that for the most part children under 15 years of age are not at large exhibiting serious symptoms while older kids do. Still, there is a distinct fear that children of all ages can pass along the virus to others. Parents should be vigilant to take reasonable steps around parenting schedules so as not to expose their children or themselves and to that end, they should adopt recommended hygiene measures such as frequent hand washing, keeping hands away from mouths, coughing/sneezing into disposable tissues, etc.; and, engage in “social distancing” – keep your physical distance from others, avoid crowds, etc.

Parents should be even more careful if a child exhibits flu-like symptoms.

Many separated parents share their children’s residential time. Usually, there is a Separation Agreement, Parenting Plan agreement, or a court order – something formal that governs the parenting schedules and the decision-making. If you breach the agreed-upon or court-ordered terms, there could be unpleasant consequences. But in this Covid-19 age, common sense adjustments are going to be required.

Covid-19 is evolving and recommended responses are changing daily. It is important that separated/divorced parents carefully consider the wider ramifications of having a child go back and forth between households. Kids are going to be stuck at home and it is likely that the regular routine is going to have to change.

Parents should talk to each other as soon as possible and come up with a plan that works best for them and the children given that the current regular parenting schedule may prove to be temporarily unfeasible. If both households are entirely healthy, if both households agree that we should all avoid crowds, then it should be just fine to stick with the existing schedule although with kids out of school perhaps some greater time sharing might afford parents and children alike some degree of respite. Nobody should be harmed by continuing the schedule and the child will benefit from the ongoing care and companionship of two loving parents.

However, if the child exhibits any of the well-publicized viral symptoms, then that child should not, in my view, be moved from the home where the symptoms first appear. If the child is infected, then he/she may pass the disease along to half-siblings and other family members in the other household. Until a physician or public health official approves the change in the child’s location, we must prioritize the health of the child and all other children and adults who could possibly be affected.

In particularly high conflict situations, if health factors dictate that a child should not be changing residences, it would likely be a good idea for the parent who currently has the child to first seek advice from a qualified public health official or from the child’s physician.

It is essential that parents communicate openly and frankly about these parenting schedule issues. It almost goes without saying that the parent who is keeping the child must facilitate generous alternate contact right away (eg. Facetime, zoom, Google Duo, and Skype). Once there is a clean medical bill of health, then the parent who had the child should do everything possible to provide the other parent with generous extra time.

Not all parents will be able to work out the operative arrangements without conflict and aggravation. If the parents have the correct priorities, then they will manage. But where they need help to plan these adjustments, let us consider some options:

If the parents already have a Parental Coordinator on board, then let that person help you resolve the issues expeditiously. If there is no P.C., then consider a very quick and summary type arbitration with a family law lawyer or a social worker. The courts are still available but only in a very limited and restricted context. The Chief Justice of the Ontario Superior Court of Justice has issued a set of detailed instructions re how emergency matters may come before the court. Ontario Court of Justice court appearances are also being curtailed. And, click here for further OCJ information.

So, parents must strive to work out these issues themselves where at all possible. If they can’t, then use a P.C., use an arbitrator, but above all – DO NOT take advantage of this health and societal crisis to deny your child all contact with the other parent. As I have noted, there are alternative modes of contact; there are ways around the problems that are not ideal, but they will have to suffice.

For those parents who unscrupulously use this crisis as an excuse to deny parenting time where there is no legitimate health or public safety concern, there will surely be a day of reckoning. For those parents who rise to the challenge and focus first on their child’s health and welfare as well as being solicitous of the well-being of other children and adults in both households, the rewards will surely be manifold.

My esteemed colleague, Annette Burns is a distinguished family law lawyer in Arizona and past President of the Association of Family & Conciliation Courts (AFCC). She has penned two articles on this same topic. Due to an overly zealous firewall at her website, we are providing here links to PDF copies of two of her recent posts. Ontario readers should note that where Annette advises litigants that they can phone up the judge, understand that such a thing in Ontario is strictly forbidden. Otherwise, the insights that Annette provides are equally helpful for Ontario residents. I reproduce Annette’s articles here with her kind permission.

Seven Guidelines for Parents Who Are Divorce/Separated and Sharing Custody of Children During the COVID-19 Pandemic

Leaders from the American Academy of Matrimonial Lawyers (AAML) and AFCC have released guidelines for co-parenting during the COVID-19 pandemic. You can find it reproduced here.

Special thanks to my daughter, Tehila Colman, a 2nd year student at Cardozo Law School in New York City, who imparted the inspiration for this blog post. This blog post is not medical advice. You should consult your physician or public health authorities for medical information. However, for any errors, omissions, and misperceptions, just blame only yours truly, Gene C. Colman. 

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