May 1, 2020

Court of Queen’s Bench of Alberta has spoken on parenting during the pandemic.

SAS v LMS, 2020 ABQB 287 (CanLII)

There has been a number of urgent or emergency applications which have been granted leave to come before the Court of Queen’s Bench here in Alberta in accordance with the Honourable Chief Justice M.T. Moreau’s Master Order. The issue of parenting time has recently been added to Chief Justice Moreau’s Master Order (No. 3) where the issue cannot be reasonably delayed. However, these recent oral decisions have not been reported, leaving counsel to refer to written decisions from Ontario as guidance on parenting issues during the pandemic.

On April 24, 2020, the Honourable Justice R.A. Graesser provided us with the highly anticipated written decision in SAS v LMS, 2020 ABQB 287 regarding parenting during the pandemic. Justice Graesser stated that he was motivated to provide the written decision since there was “no written decision from an Alberta court as yet on COVID-19 issues with parenting and many families are being impacted in similar ways to this situation.”

This summary provides an overview of those principles and expectations applicable to parenting during the pandemic as pronounced by Justice Graesser.


The Issues:

In his decision, Justice Graesser addressed the following issues:

1. The extent to which one parent should be able to expose the children and the other parent to risks they find acceptable;

2. The scope of the definition of “cohorts” – family members or close friends becoming a single unit for the purpose of contact during the pandemic (term coined by Alberta’s Chief Medical officer, Dr. Hinshaw); and

3. How and when to address these issues in the face of existing court orders.

We have left out Justice Graesser’s discussion regarding issue number two and the definition of a ‘cohort’.


Facts:

This matter involved an application by SAS, the Applicant father, against LMS, the Respondent mother, due to the mother seeking to unilaterally change the existing consent Divorce Judgement (granted May 23, 2018) by withholding the parties’ children, currently 9 and 11 years old. The parties divorced after five years of marriage and have co-parented with a week on / week off shared parenting regime since April 2013.

The father is an accountant and is therefore, classified as an essential service. He is still attending his office and meeting with clients. The mother is a nurse on long-term disability and therefore, not currently working. The mother’s 68-year-old mother resides with her.

Upon learning that the father had been taking the children to his office with him during his parenting time, the mother emailed the father on April 9, 2020 stating “the kids are going to stay here next week” along with the following concerns:

1. The father’s friend/employee “coming over to your house all the time”;

2. The children telling their mother that the father does not follow the social distancing rules when he is at work;

3. The children telling their mother that when their father goes shopping he does not wear gloves and that he does nothing to sanitize the car when he returns to it with purchase; and

4. The father taking the children horseback riding.


Summary:

The Father brought this application seeking a declaration that the mother be held in Civil Contempt of Court with respect to the parenting provisions of the existing Divorce Judgement, a police enforcement clause be added or alternatively a variation on an interim basis that the children primarily reside with the father during the pandemic with the mother having reasonable and generous access, and make up time for parenting days missed as a result of the mother failing to follow the Divorce Judgement.

Justice Graesser stated at paragraph 84,

“A guiding principle in this case should be that it is in the best interests of the children to continue with the shared parenting rotation and to be able to spend the time with their father. The ball is in his court to make sure that can happen in a way that keeps the children safe.”

In finding that the father was having unnecessary meetings with clients and showed ignorance towards the risk of the virus being transmitted by taking the children horseback riding, Justice Graesser denied the relief sought and adjourned the application to provide the parties the ability to work out an acceptable solution. He further stated at paragraph 85 that “the parties will have to address the make-up time to which [the father] appears to be entitled to.”

Guiding Principles in Alberta:

Justice Graesser at paragraph 44 provided the following summary of applicable principles to be followed during the pandemic:

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;

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 stated at paragraphs 62 to 66,

[62] “I do not think the default position should be that the household with the lowest risk level should be the home where the children reside at during the pandemic, with the other parent having virtual access only. That would require emergency workers and others in essential industries to isolate themselves from their children if they share parenting with the other parent, or have an access parent.”

[64] “The required level of trust is missing between [the father] and [the mother], and needs to be addressed. My expectation is that there is a way that [the father] can go to work at his office when he needs to be there and not expose his children, [the mother] and her mother to an unacceptable level of risk. I should not be the one to determine how that should be accomplished. Hopefully, the parents can work that out themselves, acting reasonably.”

[66] “[The father] needs to demonstrate a commitment to scrupulous compliance and a commitment to putting safety issues ahead of business issues.”


SOBY BOYDEN LENZ LLP

Cody Stokowski (In Articles)