What about children in shared custody during a pandemic?

"Stay home as much as possible" and "limit any non-essential travel:" two instructions issued by government authorities due to the pandemic which appear, at first glance, relatively simple to apply. But what about families in shared custody situations?

How can a child "stay home" when, in fact, he or she has more than one home? Is the back and forth between two households or, in other words, access to his or her two parents during this period "essential"?

Justice Quebec recently issued guidelines on changes of custody during the pandemic. The Minister of Justice endeavoured to provide a generic answer to this delicate question by declaring that "[p]revious agreements, whether a custody or access order or an agreement between the parents, for instance following family mediation, should be complied with to the greatest extent possible." She went on to nuance this position, adding that "[…] given the current situation, everyone should use common sense and follow the public health recommendations."

Meanwhile, Dr. Horacio Arruda, Quebec's director of public health, a master in the art of giving down-to-earth advice to Quebecers since the beginning of the crisis, declared that "from a purely public health point of view," it would be preferable for a child to stay in the same household. He recognized, however, that to deprive a child of seeing his father or his mother can generate distress. Of course, this is true at all times, but all the more so in the current situation.

These recommendations alone will not resolve the imbroglios and tensions that many separated parents are currently facing and to which children are directly exposed. We saw this in the recent judgment of Justice Johanne April in a recent family law ruling. Justice April found herself in the difficult position of having to rule on a safeguard order filed by the father of three children who wanted the access rights of their mother to be suspended during the crisis and replaced by contacts using technology.

To resolve the conflict, Justice April asked whether or not the parties faced an emergency that would warrant changing the status quo. Just as the Minister of Justice indicated, she rightly noted that the parties should comply with court judgments and orders as much as possible. Was it not for the well-being of the children—and so they could benefit from the presence of their two parents—that the rulings had been made?

Justice April expressed her deep concern about the great upheavals that children are currently experiencing due to the pandemic. How could anyone not be affected? She declared that parents must shield their children as much as possible from the harmful consequences of this situation and, above all, ensure that they are safe from the virus.

While seemingly paradoxical, the fact that the pandemic is a health emergency is not in and of itself a sufficient reason to change custody orders and access rights, she concluded. What's more, neither parent exhibited symptoms of COVID-19 in this case.

Sadly, we have long acknowledged the danger of the "winner/loser syndrome" in child custody battles. All too often, it is the child that suffers the most. It is also not surprising that the current situation amplifies this reality. From this judgment, we understand that it is up to parents to exercise their joint parental authority to collaborate, inasmuch as possible, to determine whether or not it is in the best interests of their children to maintain, under the circumstances, existing custody and access orders.