A recent Alberta case, SAS v. LMS 2020 ABQB 287, addresses one of the most prevalent issues surrounding shared parenting during a pandemic: how to reconcile conflicting ideas about the level of risk and exposure between households of separated or divorced parents. In this particular case, the mother was taking safety measures to avoid exposure to the COVID-19 virus especially in light of the fact that her aging mother resided in her home. The father on the other hand continued to attend his workplace, sometimes taking the children with him. He also had a colleague attend his home regularly. His position was that the mother was being “hypervigilant” and unlawfully denying him access to the children.
Justice Graesser set out circumstances where a parent’s decisions would be considered irresponsible including if a parent was diagnosed with COVID-19 or displaying symptoms and continued to spend time with the children or if a parent’s actions would pose an immediate threat to their health and safety. Given the isolation measures in place in Alberta at the time, she said the father’s colleague visiting the home could be considered an attempt to find a “loophole” in recommendations from health authorities and posed an unreasonable risk.
Justice Graesser also concluded that parents are expected discuss matters with each other before taking actions that may affect the health and safety of their children and should consider strategies to address any concerns. Withholding access should not be done except in a true emergency where the children’s safety is at risk. Applications to vary existing court orders must be evidence based and the emergence of a global pandemic does not automatically qualify as a change in circumstances.
Deborah A. Todd