Case Summary Re: Parenting and COVID-19 in Alberta: SAS v. LMS

We provided a case summary in March about one of the first cases to come out about parenting during COVID-19, the Ontario decision Ribeiro v. Wright.

In late April, the first decision on the topic from Alberta was released: SAS v. LMS Justice Graesser of the Court of Queen’s Bench, sitting in Edmonton, considered an application by a Father who claimed that the Mother was unreasonably withholding their children from him.  The Mother claimed the Father was not taking the pandemic seriously and was putting the children, and other members of their households, at risk.

Justice Graesser made the following conclusions:

1.         Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith and to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children.

2.        Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the children and the other parent.

3.        Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety;

4.        Whether under the Divorce Act or the Family Law Act, varying existing court orders requires a change in circumstances and will be determined on the basis of the best interests of the child or children. COVID-19 is not an automatic change in circumstances; the party seeking a variation must establish that their family circumstances have been impacted in a way that warrants a temporary change in the order;

5.        The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting. It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct;

6.        If an application cannot be made because of the urgency of the situation, an application by the defaulting party must be made as soon as possible after learning of the emergency;

7.        Applications based on speculation, mistrust, or fear without credible evidence of material non-compliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful; and

8.        Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and

9.         Non-compliant parents can expect no second chances.

Justice Graesser also considered the concept of “cohorts” and referenced another case that appeared before him earlier that day.  “Cohort families” are a group of close friends, that self-isolate themselves, who your family choses to exclusively associate with.  Justice Graesser notes that:

“This is not a “loophole” but rather a way of expanding a family group, where everyone completely trusts everyone in the group to follow all guidelines and rules to keep everyone in the group safe.

I do not see how a cohort can operate if members of the cohort regularly interact with people outside the cohort, unless the other members completely trust that the member is interacting in a completely compliant manner with people who are also compliant. Strangers to the cohort should not be exposed to the cohort, and the cohort should not be exposed to strangers.”

“Looking for “loopholes” or exceptions is too frequently an attempt to justify and unwillingness to comply, or an attitude of dismissiveness towards the risks acknowledged by medical professionals. Courts should be slow to permit anything that puts a person or the community in an unreasonable risk.”

The decisions coming out of the Courts, across Canada, are consistent.  In our March 26, 2020 blog post, we wrote “ Co-parenting during a pandemic should be no different than co-parenting without a pandemic: decisions should be made in your child’s best interests.  This usually means doing what you can to work together, solve problems, and be generous with each other.”  This remains true.  In addition, parents should be taking the recommendations from public health seriously and should work together to ensure their children, and the members of each other’s household, have as little risk of contracting the novel coronavirus as possible.

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