Everyone’s life has been touched by the COVID-19 pandemic is some way. This is especially true for separated parents and their children. First, they have had to adapt to new physical distancing protocols and education models. Then, they have often been forced to negotiate and incorporate temporary arrangements and adjustments to their existing custody and access schedules, to do so.
The need to adapt will likely continue, due to rising infection rates, renewed lockdown measures, and ongoing job losses. Some separated parents now face legal issues. Are custody/access changes initially intended as a “temporary arrangements” actually becoming more permanent? From the perspective of day-to-day family life for these parents, it is hard to say what the “new normal” really is, or should be.
The Legal Principles
For separated (but not yet divorced) parents the general rule is this:
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Prior to a full trial, the court is highly resistant to ordering temporary changes to whatever existing custody, residence, and access arrangement is already in place. The strong bias is towards continuing the status quo. This is so that the child has stability and certainty in the months leading up to the trial. Issues between the parents can then finally be resolved. The court will only change the pre-trial status quo in the child’s best interests, and with compelling evidence.
It is important to note that the status quo for legal purposes is different from the less legal so-called status quo:
One parent may unilaterally try by taking matters into their own hands, without any consent from the other parent. If there has been a change to the legal status quo post-separation, it can really only be established by court order. Or else with clear and unequivocal evidence that the parents have agreed to a different decision-making and residence arrangement.
How Does COVID-19 Affect Things?
Ontario courts accept the need to make COVID-19-related accommodations. They have also emphasized the need to maintain the status quo around parenting arrangements where possible. This is even during the turbulence of the global crisis. Courts remain vigilant about one parent trying to create a new status quo during the pandemic, by unilaterally imposing changes on the other. Courts take active steps not to condone such conduct, by refusing to confirm the new status quo with an order made on an interim basis.
As the court cautioned in a case called Blythe v. Blythe:
As other judges have emphasized, solutions that are implemented during this period will in many cases be intended as short-term measures to address unique challenges that none of us have had to confront during our lifetimes. The courts must not to view such temporary solutions as creating new “status quos” as we emerge on the other side of COVID-19.
An example of this kind of scenario can be found in a recent Ontario case called Davey v. Davey. The parents had joint custody, but their separation agreement stipulated that his primary residence would be with the mother.
The parents were cooperative and flexible when needed, and had largely stuck to the schedule until March of 2020, when the COVID-19 pandemic caused shutdowns across Canada. They agreed that the boy should switch to the father’s primary care, especially since the mother was a registered nurse and frontline worker whose job put her at some risk. The mother testified that this was mutually intended to be a temporary measure, while the parents “evaluated what the impacts of the Pandemic would be.”
In April of 2020 she asked the father to return the boy, but he simply refused. The mother brought an urgent motion to the court, requesting the boy be immediately returned to her primary care, in keeping with the strict terms of their separation agreement. She accused the father of engaging in improper self-help measures, to get primary residence changed without involving the court. More to the point, she claimed he was using the temporary status quo of the pandemic to bolster his legal position that the short-term schedule adjustment should ordered as permanent by the court.
The court granted the mother’s request, and in doing so rejected the father’s bid to have primary residence switched to him. The mother’s agreement in March 2020 to have the boy live with him did not create a new status quo as the father claimed; it was merely their short-term solution to the problems caused by the pandemic, the court found. It also noted that soon after the initial switch in residence, the mother had started asking regularly for the boy’s return. From that point on, the father was engaging in self-help measures, and was improperly trying to usurp all decision-making around what was best for the boy.
Even so, the court proceeded to objectively evaluate what was in the boy’s best interests, in terms of his primary residence and the potential risks from the mother’s frontline work. It concluded the mother was taking all necessary precautions, and there was no reason not to have the boy returned to her.
What’s the Takeaway?
With the COVID-19 pandemic continuing to encroach on established parenting schedules, courts are increasingly being asked to make rulings to solidify arrangements that were initially intended as temporary arrangements only. In general, courts are very reluctant to grant such orders, unless the child’s best interest clearly mandates otherwise.
Parents are urged to cooperate with each other. Make arrangements, even temporary arrangements, that serve their child’s day-to-day needs. Ones that disrupt the pre-trial status quo as little as possible.
Contact Shulman & Partners today for a consultation.
 Batsinda v. Batsinda,  O.J. No. 6120 (Ont. S.C.J.).
 L.M.B. v. F.J.D., 2020 ONCJ 239, 2020 CarswellOnt 6315,  O.J. No. 2029, 320 A.C.W.S. (3d) 88; Batsinda v. Batsinda,  O.J. No. 6120 (Ont. S.C.J.).