Our Grande Prairie Child Custody Lawyers help our family law clients in Grande Prairie Alberta deal with child custody, child parenting time, child guardianship, child access disputes, and urgent Grande Prairie COVID -19 Child Custody applications. Ana Sadovska of our Northern BC and Grande Prairie family law office looks forward to helping you resolve your Grande Prairie family law matter.
Our skilled Grande Prairie family lawyers also help family law clients with:
- matrimonial property division
- spousal support
- child support
- family violence protection orders
- interim family law matters
- restraining orders preventing matrimonial property disposition
- Grande Prairie COVID -19 child custody applications
Grande Prairie Child Custody Lawyers 1 877 602 9900
In a new COVID -19 child custody case SAS v LMS, 2020 ABQB 287 the Alberta Courts have made it very clear that self-help child custody and child parenting remedies are frowned upon. Our founder Lorne MacLean, QC explains the COVID -19 child custody rules that our Grande Prairie Child Custody Lawyers use at this time. Here is a tight summary of what the Queen’s Bench Justice said:
Self-help remedies May Be Very Unwise
[33] I do want to comment on what are frequently described as “self-help” remedies: parties who choose not to follow court orders because of what they consider to be circumstances warranting taking action before going to court to vary an existing order or get permission to take some unilateral step.
[34] I am not talking about situations where the parents have made agreements between themselves to temporarily vary provisions in a court order. Those sorts of agreements should be encouraged in appropriate situations, and do occur when parents are acting in the best interests of their children and not for selfish or ulterior purposes.
[35] Unilateral action, or self-help remedies can never be countenanced. They may in exceptional cases be forgiven. I give three examples to illustrate what may be an exceptional case, without purporting to create a complete list. One is where a parent is diagnosed with COVID-19 and insists on still exercising face to face access with a child. Another would be where a parent is displaying symptoms of COVID-19 but refuses to do anything about it. A third situation would be where a parent has or is about to do something involving the children that poses an immediate threat to their health or safety. In any of these cases, if there is no time to apply for permission to make an emergency application, unilateral action may be forgiven if an application is made at the earliest opportunity.
[36] These are examples of situations where a parent deliberately breaching a court order may avoid sanction or prosecution under the Criminal Code for deliberately breaching a court order. I emphasize may because any situation is fact specific and contextual. These situations require the defaulting party to be acting reasonably and in good faith with credible evidence of the emergency, and not just fears or distrust.
[37] In almost all cases, a court application should be brought before any action is taken. And many cases will not be urgent so as to require exceptional access to the Court.
Grande Prairie COVID -19 Child Custody
1 877 602 9900
Grande Prairie Child Custody Lawyers now apply the following principles in a Grande Prairie COVID -19 child custody case:
[43] It should be recognized that this pandemic is expected to end at some stage, and life as we knew it before mid-March will return to some sort of normalcy. While parents may be unhappy or even devastated at not having their children with them, this is a temporary situation. Missing a few access visits, or even a few months of face to face visits is unlikely to have a major long-term impact on the child’s relationship with the parent who is only able to communicate electronically over this period. Making up “missed time” is not an emergency and should be discussed between the parties before an application is made after the pandemic ends.
[44] With these comments in mind, I will summarize my conclusions:
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; and
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.
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