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Rosemary Bocska

How to Approach Divorce During the COVID-19 Holidays

The City of Toronto and Region of Peel have just entered a second government-imposed lockdown phase. They are attempting to stem the spread of COVID-19.  With a mandated duration of 28 days spanning into December, the timing is particularly unfortunate. It coincides with the start of the holiday period for many families.

For separated and divorced parents, the festive season is often a much-anticipated bright spot on the calendar.  However it can also be a difficult and frustrating time. This year, the pandemic will likely make it even more so.  Not merely for the practical health concerns and the accompanying restrictions. It is also because the holiday season brings many traditions and special celebrations with cherished family and friends. Ones that may have to be curtailed or eliminated altogether.

How should parents manage these challenges and potential sources of disappointment?

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Holiday Gatherings

At the moment there is no Canada-wide or Ontario-wide protocol. Although, every region of the province is currently subject to some sort of restrictions designed to reduce the spread of the coronavirus.  These can include masking and social distancing requirements, the imposition of “social bubbles”, limits on the size of social gatherings, and restrictions on whether those who are not part of a household can gather at all.  Plus, it seems that the rules and guidelines are shifting virtually every week.

Unfortunately, these restrictions are likely to remain in place even during the festive season. It will mean that separated and divorced parents must make adjustments to accommodate.  This may mean reducing the number and scope of gatherings, resorting to teleconferencing methods like Zoom or Skype, and leaving out those family members who are particularly vulnerable due to existing health concerns.

But for those parents who are already in a state of discord around their child custody and support issues, these added adjustments may heighten the conflict between them.  There may be a temptation to run to the (already strained) Family Courts for resolution, but this is discouraged. Instead, parents should heighten their level of cooperation with each other if at all possible.

Courts and the Holidays

Besides, as recent cases have shown, courts remain very firm on enforcing COVID-19 rules. This is even where it means that a child will have to miss out. 

For example, in one Ontario court decision called Moncur v. Plante[1] that was issued this past summer, the court prevented a separated father from taking his son on a week-long cottage vacation with extended family, because of the mother’s COVID-19 related concerns.  Those family members – including the child’s paternal grandparents and aunt – were from different regions of the province.  As the mother pointed out, they were technically not part of the same “social bubble”. Therefore they were in breach of the pandemic protocols mandated by provincial government.  The court agreed, and ruled that the boy could not go on the planned vacation.  The father had the best intentions for a fun and happy week in cottage country. Although, they did not outweigh the potential risks to the child.

Decisions like this one underline the notion that even during special time of family togetherness, courts will always keep the safety and best interests of a child in mind. This will no doubt extend to the courts’  assessment of any upcoming holiday gatherings. Gatherings envisioned by one or both parents. They may result in an unwanted Grinch-like court ruling that cancels all holiday plans entirely.

Parenting Schedules

Even during non-pandemic years, separated or divorced parents often struggle to adjust their regular parenting schedules to accommodate the happy disruption of the holidays.  The festive season sometimes involves travel for the child. The child, for instance, may be visiting another parent or extended family members in other regions.

With the mandates around COVID-19, which dictate a 2-week isolation period for any out-of-province travel, this has become a highly-complex issue.  More to the point, travel for children even to see another parent has been largely halted entirely. Courts have made several recent rulings that confirm that the potential travel-related health risks to a child during the pandemic will trump even the rights of a separated or divorced parent to spend access time with the child.

As only one example, in a case called Semkiw v. Sutherland[2] the court ordered that the children should not be allowed to travel to Texas during the pandemic to visit their mother.  In another decision in Yohannes v. Boni[3] the court ruled that the child should not travel to France to visit her father even to keep up with the agreed parenting time schedule.  In both cases, the court considered the best interests of the child, and the related potential health risks to him or her.  These were assessed against numerous factors. Including the background of  the parents’ specific travel plans, the COVID-19 health guidelines of the intended destination, and any Travel Advisories that were in force. 

Even where the parenting schedule does not necessitate travel, the only feasible solution for parents is the one that engenders compromise and understanding. These are truly exceptional times – playing out on a global scale. Parents must understand that it may not be reasonable to expect that an established parenting schedule can or will be rigidly adhered to.

What’s the Best Approach?

For those parents who are in the midst of separating or divorcing, the holidays were likely going to be challenging in the first place; the impact of the pandemic is merely an unexpected twist.   It merely adds to the long list of day-to-day adjustments and compromises such parents must already make. All while figuring out how to raise their child together, while living physically and emotionally apart.

But what is the best way to manage these new complications?  The answer is always the same:  cooperation, flexibility, and understanding.  Not just between parents, but by extended family members as well.  This will ensure that while the 2020 holiday season will inevitably be different, it can still be special (in a good way).


[1] 2020 ONSC 4391

[2] 2020 ONSC 4088 (CanLII). <http://canlii.ca/t/j8hf1>

[3] 2020 ONSC 4756 (CanLII). <http://canlii.ca/t/j9465>

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