Facilitating child access during the ordinary hustle and bustle of regular life sometimes has its challenges. While some parties amicably facilitate access between themselves, some parties experience difficulties. However, COVID-19, or the Coronavirus, has made facilitating access extremely difficult and challenging for almost everyone.
As we are in an unprecedented situation, parties are turning to their lawyers for guidance. The problem is, lawyers have never experienced something like this either. Pandemics don’t come around often, thankfully, and there has never been one like this with such a disruptive force. As such, even lawyers could not have foreseen such a situation and adequately prepared for it. The result has largely been lawyers trying to find creative, practical and above all else, safe solutions for parties wishing to facilitate access.
There are several problems both the parties and lawyers face. One, the courts are all but shut down, and will only hear urgent or life-threatening matters. While urgency is based on a case-by-case analysis, more often than not, access issues are not considered to be urgent or life-threatening. This leaves any relief sought by the court out of the question. Second, and most importantly, people are being told to stay home and practice social distancing in an attempt to flatten the curve and make COVID-19 more manageable. This has made facilitating access very challenging and concerning.
Should access continue during the pandemic? If so, how should this be done? Is it safe for the families to have the child go back and forth between homes? Should the child stay where they are until health officials no longer advise people to stay home and practice social distancing?
These are questions family law lawyers have been grappling with since the pandemic turned our everyday lives upside down. While solutions continue to develop, lawyers are free to turn to creative options which, if agreeable to by the parties, will allow access to continue.
Can parents keep children home and not facilitate access?
The parties first need to discuss, either themselves or through counsel, whether they agree on having the child travel between homes. If one of the parties is not agreeable, there isn’t much that can be done at this time. The police will likely not get involved with such an issue, and will advise them to deal with the matter through the court or their lawyers. While keeping a child from the other parent ordinarily may be in breach of a court order, the court is likely not going to hold the parent in contempt if they were acting in accordance with government directions to stay home, and were sincerely concerned for the safety and health of the child and others in the home.
Possible Solutions and Precautions for Access
If parties are agreeable to access, they should ensure that health and safety precautions are in place before facilitating access. The parties should first confirm that no one in either house has been in contact with a person who has tested positive for COVID-19 or has traveled internationally within the past 14 days. Parties should also ensure that proper hygiene and hand-washing is being practiced. Parties can also ask that commonly touched surfaces in the house (tables, doorknobs, railings, counter tops, etc.) be cleaned throughout the day. These and other precautions can be put in place (if not already) to ease the concerns of facilitating access and having the child go back and forth between homes.
Do What’s Best for the Child
Ultimately, parents should focus on what is in the child’s best interest. It is important for a child to speak and spend time with both parents. If regular access simply cannot work out, parties should accommodate to the best of their abilities. Parents can speak with the child over the phone or available video chat platforms, such as FaceTime, WhatsApp, Facebook, Google, Zoom, etc. While some parties may be initially averse to video access, parents need to work together and act in accordance with the child’s best interests during these challenging and unpredictable times.
Parents are urged to be understanding and cooperative with one another until COVID-19 runs its course. Even if that means not having your scheduled access, parents should understand that the children’s health and safety are paramount. Until health officials advise that it is safe to leave our homes and resume normal life, parents are encouraged to do their best under the circumstances and work together.
Nussbaum Law is a Toronto based law firm that exclusively practices family and divorce law.
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