Denying Co-Parenting in Times of Social Distancing

March 26, 2020
Cori Molloy

One of the most asked questions we’re getting right now is related to parenting time and concerns over having the children move between households.  In most cases where this arises, one of the parents has employment that puts them in a vulnerable position for contact.  Think health care or essential service providers, or individuals who work on rotating schedules that involve travel to and from remote locations.

The best-case scenario in these circumstances is that both parties are able to engage in transparent, open dialogue that puts the best interests of the children front and centre.

Unfortunately, we are usually contacted in situations where one parent has elected to make a unilateral decision that affects all involved, instead of having that open dialogue.

Here are somethings to take into account when considering denying access to the other parent:

1)     Who are you concerned for?  Your children, yourself, or another member of your household?  Do any of the members of your household have immunity issues?

2)     How serious is the risk of contact between your co-parent and the public? Are they in contact as a result of their job or do you simply suspect that they are not social distancing themselves to your satisfaction?  In other words, how serious is the likelihood of exposure?

If your parenting time is set out in a court order or an agreement and you decide not to abide by its terms, you are breaching the order or agreement.

The consequence of a breach is the possibility that your co-parent may make an application to court for a remedy.  The courts are currently only hearing urgent applications and it’s not clear at this time whether denial of parenting time would fall into this category (see my colleague’s blog on a very recent court decision on this matter where the court refused to hear an application from a mother to prevent her child from visiting the child's father despite her fears the father was not social distancing). The Family Law Act allows applications related to denial of parenting time to be made within one year of the denial, so whether they make an application to court today or in three months, it’s still a possibility that you will be required to make your case to a judge.

If you find yourself in court at the conclusion of this, and the court finds you’ve wrongfully denied parenting time, the court has the ability to do one of the following:

1)     Require you and your co-parent to participate in family dispute resolution;

2)     Require either or both of you or your child to attend counselling, specified services or programs;

3)     Specify compensatory parenting time for the co-parent who was denied their parenting time;

4)     Require you to reimburse your co-parent for expenses related to the loss of parenting time;

5)     Require supervised exchange of the children going forward;

6)     If the court believes that you will not comply with an order, it can require you to give security, or require you to report to the court as it sees fit;

7)     Require you to pay up to $5,000 to the other party for their benefit or the benefit of the child whose interests were affected by the denial, or a fine not exceeding $5,000.

These are extremely serious consequences and certainly not something to take lightly.  

On the other hand, there may be situations when a parent should prevent the child from visiting the child’s other parent.  We would be more than happy to discuss your situation with you to help you make the best decision in the circumstances.  If you are in a situation where you are concerned about complying with the current parenting order or agreement, and you can’t work it out through discussion with your co-parent, we continue to be available for consults on any issues as they arise.

Please contact us.

 

NOT LEGAL ADVICE. Information made available on the Connect Family Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.

 

 

Cori Molloy
Cori Molloy
Lawyer (Kelowna)
Connect Family Law

Cori understands that at the heart of every family law matter is just that: a family. Because of this, she stays mindful of the needs of those most affected while advising her clients on the myriad legal issues that accompany separation and divorce.