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April 24, 2020 Family Law
The impact of the COVID-19 pandemic is felt throughout the judiciary and even in family courts, where some parents apply for a change in the custody or access order because the other parent (or his/her spouse) works in essential services, particularly in the health care system.
In the matter Droit de la famille 20506 (April 3, 2020), one of the parties is a parent working as a housekeeper in a hospital.
In this case, the parents had been exercising a joint and shared custody since November 22, 2018, pursuant to various interim orders issued by the Court, including the latest interim agreement reached in December 2019, which has since been confirmed and renewed.
In this particular case, the mother unilaterally refused to allow the children to join their father in his home from March 20, 2020, to March 27, 2020, for his custodial time, because she was concerned about the coronavirus pandemic (COVID-19).
The mother wished to suspend the shared custody arrangement until the end of the public health emergency.
Faced with the mother’s unilateral decision, the father applied to the Court for a safeguard order to enforce the terms of shared custody.
The mother argued that both children are asthmatic, that she is also the mother of an infant born in 2020, that she had concerns about the coronavirus, that she lived in the countryside and that, in the context of the COVID-19 pandemic, her home was a safer environment than the father’s home.
The mother wanted to keep the children with her until the public health emergency was lifted and, as a solution, she suggested granting the father access rights via technological means.
The Court held that court orders must be respected and that a parent may not unilaterally modify custody arrangements.
Considering the strict rules of social distancing implemented in the father’s work environment to minimize the risk of contagion with patients and hospital staff, as well as the great precautions taken by the father and his compliance with public health guidelines, the Court granted his application for a safeguard order and ordered the mother to follow the terms of custody.
In particular, the Court took into account that the father avoided contact with friends and that contacts with family members were limited to the strict minimum and safe, especially since compliant health measures were implemented at the apartment building where the father resides.
The Court concluded that shared custody between the parties is an arrangement made in the children’s best interests and stated the following about the current situation during the COVID-19 pandemic.
 WHEREAS the current situation is a result of exceptional circumstances due to the outbreak of coronavirus disease (COVID-19) and the public health emergency declared by the Government of Québec since March 14, 2020;
 WHEREAS the health and safety of children remain the main considerations for the Court in its assessment of their best interests during the current outbreak of coronavirus disease (COVID-19);
 WHEREAS, moreover, the current situation, however extraordinary and worrisome it may be, is not in itself sufficient grounds for changing the shared custody arrangements that have been put in place and depriving the children of the presence of one of their parents;
 WHEREAS each case must be assessed according to its own circumstances, based on the risk to which the children are likely to be exposed;
 WHEREAS the mere fact that one of the parents is employed in a job deemed to be an essential service is not in itself sufficient, in the absence of infection or symptoms of coronavirus disease (COVID-19) in those involved, to suspend shared custody arrangements;
 WHEREAS the evidence does not support the conclusion that the defendant does not comply with the health measures that are required in his living environment;
In light of these circumstances, the Court stated that shared custody of the children should be maintained, despite the ongoing pandemic.
When health measures are observed and there is no infection or symptoms of coronavirus disease (COVID-19), the fact that one of the parents is employed in essential services, such as health care services, cannot be invoked as the sole reason for preventing him or her from seeing his or her children and for changing shared custody arrangements.
The Court held that each situation warrants a case-by-case analysis, based on the risk to which the children are likely to be exposed.
This bulletin provides general comments on recent developments in the law. It does not constitute and should not viewed as legal advice. No legal action should be taken on the basis of the information contained herein.Back to the list of publications - Family Law