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You’ve heard the directives so many times now it seems almost silly to repeat them: Stay at home, limit interactions, stay far apart.
But there is one group of people regularly travelling back and forth between households: children with co-parents who don’t live together.
In yesterday’s daily COVID-19 briefing, Nova Scotia’s chief medical officer of health, Dr. Robert Strang, issued this advice to co-parents:
There may be legal requirements, so the first thing is people need to talk to their lawyers if necessary, but from a public health perspective, every time the child is moving back and forth, we’re increasing the chance of bringing the virus between two homes. So if at all possible, and I know this may be difficult for families and hard to hear, but if at all possible, from a public health physician, it makes sense that the child remain in one home, isolated and kept separate in that one home, rather than going back and forth between two different family units, each family unit probably has connections out in the community. You’re putting that child and both family units at increased risk of coming in contact with the virus.
As Strang notes, many parenting agreements are backed up by a court order specifying who has the kids when. From a public health perspective it may be ideal to have kids stay at one house, but is it realistic? And what are the legal implications when parenting agreements are thrown into disarray by the pandemic?
Maureen Nielsen [I’ve given her and her ex-husband pseudonyms for this story] is one of many parents facing these dilemmas. Note that I interviewed Nielsen and the others in this article before Strang made his comments yesterday afternoon.
“The practical level stuff is quite interesting,” Nielsen says. “My kids move back and forth between my house and [her ex-husband] Jeffrey’s house. Jeffrey has a partner who sleeps over sometimes, and she has young adult children who live with her and are in jobs where they have contact with the public. And then I have a boyfriend who has children who also move back and forth between two houses.”
Nielsen’s boyfriend’s ex and her new partner have kids too.
She adds, “So there’s a long chain or, I guess we’re calling it a community, that’s connected — because there are these children who move between the different households. We had to talk about what to do about that. There are lots of possibilities. The kids could just stay in one house, but that would mean not seeing the other parent. I think the benchmark is what do we feel comfortable with, what’s reasonable to expect of other people, and what’s safe.”
One of the members of the group drew up a colour-coded flow-chart-style map of everyone involved and their connections to each other. Nielsen says, “So basically what we’ve done is create a boundary around that community so the kids can keep moving back and forth between their parents, and the adults can still have contact with their romantic partner.”
She says it took about a week of discussions and negotiations among all the parties to come to an arrangement that worked for them, and that would minimize exposure to people outside the group. That meant some living arrangements had to change.
Family lawyer Christine Doucet, a partner at the Halifax-based family law and personal injury firm MDW Law, says she and her fellow lawyers realized during the week of March break that the pandemic was going to have wide-reaching effects on parents.
“We were all scheduled to be on vacation, and of course our trips were all cancelled, and we all ended up in the office trying to figure out how we were going to run a business and help our clients in this climate,” she says. “It was only a matter of days before I began to realize there would be new issues arising relating to the pandemic.”
One of the first questions that came up was how to deal with self-isolation. Parents who had taken their kids on vacation out of the country were now supposed to self-isolate for 14 days, meaning the other parent wouldn’t have access. If they’d been away without the kids, they would have to self-isolate and not see their children during that period.
“If I’m in self-isolation does that over-ride the parenting schedule?” Doucet says. “We as lawyers cannot tell people not to follow court orders. The court order is paramount. But on the other hand, we have the directives of the chief medical officers of health, which now do have the force of law, and we can’t tell people not to follow those.”
In normal times, these sorts of issues could be adjudicated by the family court, but in the current emergency, that’s not an option.
A notice sent out March 23 by Associate Chief Justice Lawrence O’Neil of the Supreme Court of Nova Scotia (Family Division) says “all currently scheduled matters (unless deemed urgent) are being removed from the docket. They will not be rescheduled at this time.”
The family court has not completely shut down. It is available for emergencies, but those emergencies are very limited, and the notice specifies that “unilateral interruptions of court-ordered parenting arrangements” and “disagreements as to a child’s activities while in the care of another parent” have “been deemed not to be an emergency.”
Doucet encourages parents to be flexible and work it out. She says among her firm’s clients “we have a lot of situations where people are reasonable and flexible and able to work out new arrangements to respect the spirit of the order… Where the problem arises is with people who have no lines of communication, or communication has broken down and there is a lot of conflict.”
In a blog post on her firm’s website, Doucet writes:
Common sense must prevail. There will be times when the circumstances require parents to change existing parenting schedules or arrangements in order to best meet their children’s needs during the pandemic. For example, a parent may be in self-isolation as a result of exposure or recent travel without the children and may offer to reschedule or trade upcoming parenting time. Parents faced with layoffs or additional work demands (in the healthcare sector, for example) may have either more or less time available for parenting. With childcare unavailable, they will be forced to be flexible in their arrangements with the other parent.
Nielsen agrees that good communication is vital, but recognizes it’s not always possible. She says, “These kinds of arrangements are pretty difficult if the communication is difficult. And it can definitely activate any kind of resentment that’s ongoing. Ideally, people realize they have to work together and negotiate and compromise, but I can imagine that very easily breaking down.” She adds, “I think it would be very hard if you didn’t feel trust in your co-parents.”
Doucet says for co-parents who can’t work things out, she and other lawyers are offering online mediation sessions.
She said she and her colleagues are looking to other jurisdictions for guidance on what happens when court orders and public health directives conflict. “In the UK there have been some orders saying for parents to be flexible and to look at what the spirit of the agreement would be… When this is over, the courts will look at the decisions of the parents to see if the decisions were reasonable,” she says. “We are advising our clients when they do make decisions about how to follow the existing court order and agreement, while also following the provincial government’s directive, they need to be aware that in the future, when this is over, those decisions may fall under a microscope.”
Psychologist Lynne Robinson, who teaches at the Dalhousie School of Health and Human Performance says, “It’s such a complex situation for parents, never mind co-parenting.” Robinson, who cautioned that she can’t speak to legal issues and that people should observe public health guidelines by staying home and social distancing, said she suggests people approach co-parenting questions by considering three dimensions: What is safest? What is my relationship with my co-parent like? And, most importantly, what does my child need to be emotionally well during this difficult time?
“When you see parents who have a somewhat conflictual relationship, that can be a real challenge. What is safest? What behaviours are acceptable or not? Even at normal times, parents can have different tolerance of risk for their children and now that difference will quite possibly be exaggerated because people’s fears are quite aroused right now, and not unjustifiably,” Robinson says.
“You may have a parent who is more protective and one who is more risk-tolerant for their child. Parents have to find the right balance of risk versus safety, and parents quite often don’t fall in the same place on the continuum.”
To facilitate these conversations, Robinson suggests being very intentional about them by planning a time for the conversation and choosing a communications method that works for both parents. “Sometimes email can be helpful for people to focus, but for others that doesn’t work because it’s carte blanche. For some, phone might be better.”
Regardless of how co-parents choose to communicate, Robinson says it’s important to choose “a time that is conducive for this kind of calm, focused discussion.”
She adds that sticking to routines as much as possible can help lower kids’ stress and help them cope.
“Even if it’s not safe for the child to move back and forth, it’s important to stick as much to the routine as possible. If every Sunday afternoon is the time you see the other parent, set something up that they can work on together by phone, Skype, or FaceTime. There are so many ways for people to connect now and be present, even if you are not physically present. You can watch a show together, you can crayon if the child is little.”
Now, more than ever, she says, parents in conflict need to put aside their differences and work together. “Maybe they can both agree on a pause during this crisis not only for the kids but for themselves as well.”
The provincial justice department also urges co-parents to talk to each other and work out reasonable arrangements. An emailed statement from the department urges parents to “work in the best interests of their children as they work together to comply with Court Orders and with Orders issued by the Chief Medical Officer.” The statement goes on to say:
If possible, and safe to do so, the parties are encouraged to talk to each other, and develop a mutually-agreed upon plan. If their personal circumstances, or the conditions of their Court Order, do not allow for the parties involved to talk directly, they may consider asking a trusted friend or family member to serve as an intermediary.
The department encourages parents who can’t come to an agreement to contact legal aid or the courts, if they have “emergency concerns.” But, as we’ve seen, parenting agreements don’t qualify as emergencies.
Nielsen talked about the importance of trust, which brings up the question of what to do if one parent believes a co-parent is flouting the social isolation rules.
In this case, the justice department’s advice seems to be the same as it would for anybody in that situation:
If any Nova Scotian has concerns about others not adhering to the Health Protection Act Orders, they should, if possible and it is safe to do, have a conversation first, to explain why self isolating and social distancing are necessary. If a call to police is needed, please call a non-emergency number for the police that serve your community.
Nielsen says if she and her ex hadn’t been able to come to an agreement, she probably would have sought legal advice “It’s a stressful situation, a lot is unknown, and parents have this added burden of responsibility and fear that comes with trying to protect their young children,” she says. “Emotions will be kind of heightened, and that’s normal. Maybe just try to be honest about that with the co-parent and say you feel scared or sad, and that you really want to be able to communicate and put what’s good for the kids first.”
Doucet says if parents have concerns about co-parents’ behaviour in the pandemic, they shouldn’t count on the courts to sort it out. “I think the family division is trying to make it pretty clear that cases dealing with the child’s activities while in the care of the other parent do not fall into the category of emergency that they’ve set out… unless it rises to a child protection issue.”
She adds, “So if there is an example where the children’s safety was endangered that would be dealt with through child protection services. If it’s more a case of a judgment, I think we can safely say during the pandemic the courts would not be available and you should seek other forms.”
But what happens if a parent thinks their ex is flouting the public health directive, say, by organizing play dates? Does that rise to the level of child protection? At the time I interviewed Doucet she said she didn’t think so, but she recognized that things are changing quickly.
“There are no easy answers,” she says. “This is something none of us have ever faced before as family lawyers and I don’t think two weeks ago we’d be thinking we’d be facing these kinds of questions.”
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