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Custody & COVID-19 By: Ida Mirzadeh

What do you do when a “national state of emergency” and the gravity of what we as citizens are encouraged to do by our government to keep our country safe, conflicts with the parenting terms of your custody order?

Our advice is to always consider the best interests of the child(ren). While our government and health officials stress the need to stay home, keeping child(ren) in their primary residence and thus away from the other parent, is generally not in their best interest.

Although these are challenging times, which can be exacerbated by the fact that you are also going through a high conflict custody battle, there are ways of approaching and resolving conflict in a child focused manner. Given that our courts are currently only dealing with urgent matters, litigation may not even be an option depending on the circumstances of your case.

The severity of the contempt (i.e. one parent failing to adhere to the terms of a parenting agreement or order) and whether the court will deem the matter as “urgent” depends on the circumstances of the case and is fact specific. Parties are encouraged to act reasonably and are cautioned against taking advantage of the situation and using this pandemic to withhold or restrict access.

This is a prime example of how important it is to explore alternate forms of dispute resolution, such as mediation and or arbitration. Also, bear in mind that this pandemic is not going to last forever, therefore any agreement you reach during this period can be drafted as temporary and without prejudice in order to provide some immediate relief and a solution during these unprecedented and challenging times.

Sound and effective legal advice has never been more essential when it comes to navigating parenting issues that are bound to arise during this period of self-isolation.

Working Remotely & COVID-19

Our offices remain open and we continue to ensure the health and safety of our clients and our staff by working remotely, when feasible.

I had initiated an effort to implement a more “paper-less” system into my practice early last year, meaning that I had already started the process of converting my physical files into an electronic format and stored the digital files on a drive that I could easily access remotely. Accordingly, I found that my transition to “working remotely from home” went more smoothly than some of my colleagues who are more paper-based and heavily reliant on hard paper files.

It is important to implement as many innovative and creative solutions as possible and ones that work personally for you and your practice and your type of clients. Some less sophisticated clients may require more of your time and effort to complete a simple task such as swearing a court document or agreement.

With respect to logistics and as a result of the practical challenges that our profession is bound to face in light of the COVID-19 pandemic, there are measures in place to assist with problems such as swearing or commissioning documents. For example, the statutory requirements that oaths and declarations be taken “in the presence of” the commissioner have been deemed to not require physical presence during this time of social distancing and self-isolation. Instead, alternative means of commissioning or witnessing, such as via video conference, are permitted. In addition, I have implemented video conferencing platforms such as FaceTime and Zoom in order to hold client meetings and consultations multiple times during the last couple of weeks and it has worked out well.

I also encourage my fellow colleagues and members of the family bar to be cooperative and accommodate unusual requests in order to move matters along during these challenging times.

We can ground ourselves in the fact that this will not go on forever but we must work through it together!

Please note that this post references law in Ontario, Canada. This is for information purposes only and not legal advice.

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