Be reasonable, document everything: Navigating family law in a pandemic

VANCOUVER (NEWS 1130) – As routines crumble amid the pandemic, family becomes even more important.

But what if your family is dealing with a custody battle and family law? When the COVID-19 crisis is over, every text message, email, and conversation could end up in front of a judge, warns a women’s legal centre.

“These are unprecedented times,” Andrea Bryson, a case worker at Rise Women’s Legal Centre, says. “People are throwing that word, unprecedented, around, but what that phrase means has very real legal meaning. We don’t have cases that tell us how judges decide things after pandemics are over.”

She says what we know is that women tend to take the brunt when things get difficult at home. Under normal circumstances, not during a pandemic, Bryson says many people often had the option of getting out of a bad situation — at least for a short time — by just getting out of the house.

However, with physical distancing measures in place to help slow the spread of the novel coronavirus, that’s no longer an option.

“Tensions are raised, things that were almost manageable before when you could get out of the house, are not manageable anymore,” Bryson explains. “So what we also want women to know is that if it’s not safe, that the courts are still an option, and that there are resources and there are ways to approach the court.”

Rise has assembled guidelines for parenting during the health crisis, outlining certain steps a parent should take as well as resources that are available to those who may be in a troubling situation.

The B.C. Government has also created an online resource for frequently asked questions, including what to do if you are having trouble paying parental or spousal support.

Legal AID BC Also has a COVID-19 page to help families understand how the courts are adapting and operating during the pandemic.

Rise’s guidelines tell parents to respect orders and agreements, “Where you can do so safely… If you are unable to follow the court order exactly as written, try to follow the order as well as you can.”

Rise also says parents should be reasonable and practical, and that if you can’t follow an order or agreement — and it’s safe to do so — to “try to ensure that the parent whose time with the child is being impacted maintains a close relationship with the child.”

Being proactive by developing a plan with the co-parent, and documenting any changes that may arise due to the COVID-19 pandemic are also key recommendations.

“What we know is that, on the one hand, [the courts] might be upset that people are withholding time or doing stuff against the wishes of the order. On the other hand, the courts are going to be inundated when this is over, and having everybody coming and second guessing decisions that were made might also be a lot for the courts to tackle,” Bryson says.

“We don’t know how the courts are going to respond. So what we’re hoping is to help people make the most common-sense-decision that will hopefully alleviate the issues for them in the current situation that they’re in and make sure that they’re not going to end up in a bad situation going forward.”

Rise has also listed a number of recommendations for parents who may feel their co-parenting situation is unsafe, including prioritizing safety. If you feel you’re in imminent danger, Rise urges you to call 9-1-1. Protection orders and varying your current order are also other options available, Rise says.

The most serious of steps, it notes, is the denial of parenting time. “If you do deny parenting time, you may be called on in court in the future to justify your denial and a judge will decide whether or not the denial was wrongful or not. Please review sections 61 and 62 of the Family Law Act here,” the guideline from Rise reads.

“What we really want women to get out of this is how you live your parenting orders in these unprecedented times, is to really think about what does the judge have in mind for us,” Bryson adds. “What have we always kind of done? And how do we help our child maintain a sense of normalcy in that? … We want women to come across as reasonable and practical.”