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Thursday April 2, 2020

UPDATE: Moving between homes during COVID-19: Public health advice versus legal obligations

Posted in: COVID-19 Family Law

On Tuesday, March 31, 2020, Nova Scotia’s chief public health officer, Dr. Strang, advised that children moving between homes in co-parenting situations may increase the child and family’s exposure to COVID-19. Dr. Strang recommended that children should remain in one home during this pandemic.

Dr. Strang advised that parents should speak to their lawyers about legal obligations relating to parenting arrangements. This has resulted in much confusion for parents who have court orders or agreements relating to co-parenting.

However, yesterday, Dr. Strang qualified his earlier comments on co-parenting and the COVID-19 risks. He reiterated that his opinion to keep children in one home is from a public health perspective. Dr. Strang stated that he is not telling co-parents to disregard their court orders but urged parents to work together to find creative solutions in this unique time. Dr. Strang noted that if parents cannot work together, they should contact a lawyer to facilitate an agreement.

A video of his remarks, which begins at the 8:30 mark, can be found here:

The Courts in Newfoundland and Labrador have released a COVID-19 Custody and Access Information Sheet that has been developed by Family Justice Services to assist parents. Specifically, it notes that if you have a court order or agreement relating to access or parenting time, parties are still expected to follow that order or agreement; children benefit from seeing both parents.

A copy of this Information Sheet can be found here.

New Brunswick has also released a question and answer sheet on custody and access during COVID-19, which can be found here.

Ontario courts have already started hearing emergency cases relating to parenting arrangements during the COVID-19 pandemic. Similar to Ontario, Nova Scotia is only hearing family law matters if it is an emergency. Whether or not your situation is an “emergency” is fact specific.

A recent decision from Ontario sheds light on how the court is dealing with parenting arrangements during this pandemic.

In Ribeiro v. Wright, 2020 ONSC 1829 (“Ribeiro”), the court held that courts will deal with COVID-19 parenting issues on a case-by-case basis, specifically:

“If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.”1

The court in Ribeiro held that the presumption is that the existing parenting arrangement should continue.2 Specifically, the court held, “There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.”3 The court went on to say the following:

*This case is from Ontario. Therefore, it is not binding on Nova Scotian courts, but is likely persuasive; meaning these same logic and principles will likely apply in Nova Scotia.

If your co-parent is disregarding government policies on COVID-19, or to discuss your unique parenting arrangement amidst COVID-19, please call (902) 469-9500 to schedule your free 30-minute consultation with a member of our Family Law team. Appointments can be via phone or virtual meeting platform (Skype, Zoom, FaceTime, etc.).

This is legal information and is not intended to be legal advice.

1 Ribeiro v Wright, 2020 ONSC 1829 at para 20-21.

2 Ribeiro v Wright, 2020 ONSC 1829 at para 11.

3 Ribeiro v Wright, 2020 ONSC 1829 at para 7.

4 Ribeiro v Wright, 2020 ONSC 1829 at para 10.

5 Ribeiro v Wright, 2020 ONSC 1829 at para 11.

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