Child custody for front line medical workers and other urgent COVID-19 family law issues

Should custody arrangements be modified where one parent is a nurse working with patients who may be infected with COVID-19?

In child custody cases, the core principle is always what’s in the best interest of the child.

A recent BC court decision set out factors to be considered when assessing a child’s best interest in a situation where a parent is working in an environment of known risk. These include whether the child has medical conditions placing them at higher risk if they are infected, whether either parent has people with elevated risk in their household, what the risk is of either parent contracting the virus, and what steps each parent is taking to mitigate the risk of exposure.

In a recent case involving an eight-year-old child, with a mother working as a nurse, the judge acknowledged that while there was some risk to the child from infection, this was offset by the benefit that the child received spending time with his mother.

The judge took into consideration steps that the mother was following to avoid infection: wearing hospital scrubs, leaving her shoes and clothing at work, wiping down her bag, showing as soon as she got home, and using bleach to clean her door handles. 

The judge did direct the child’s parents to continue discussing risk factors, as they had been doing, and that if it became apparent there was an elevated risk to the child, that they should take appropriate measures to protect him.

During the 7 seven-day periods that the mother, who is a nurse, has custody of the child, she would not be working.

Other cases discussed in the episode include a circumstance where a parent with shared custody enters into a new relationship with a partner who also has a child with whom they share custody. This case involved an assessment of the steps being taken to avoid transmission from one home to another.

Two other categories of family law cases also raise issues of urgency are being dealt with by way of hearing conducted by telephone: child apprehension cases and applications to vary support orders.

Where a child is apprehended by the Director of Child, Family and Community Services, the relevant legislation has several provisions directing that hearing be conducted promptly. A recent decision confirmed that this is so, even in the context of COVID-19, and required that a hearing be conducted promptly, by telephone.

A final category of cases, which will need to be dealt with on an urgent basis, will be applications for the reductions in child or spousal support payments as a result of people losing their jobs. There is an obligation to bring applications to modify support orders promptly, rather than not paying and applying after the fact for a change in the order. 

If support payments are reduced, or eliminated, as a result of unemployment, former recipients may have issues qualifying for the Canadian Emergency Response Benefit if they were not previously employed.

Follow this link for a transcript of the show and links to the cases discussed.