As family lawyers, we often get asked about the pandemic’s impact on parenting arrangements. Since March of 2020, the Nova Scotia government has issued several public health directives; some requiring self-isolation, and others limiting group gatherings. Most recently, in early-December 2020, there was a spike in COVID-19 cases in the Halifax Regional Municipality (“the HRM”). As a result, the government asked Nova Scotians to limit their travel in and out of this region.

Custody and visitation arrangements in 2020

COVID-19 prevention measures, including public health directives and government recommendations, have caused confusion for separated families. Parents are uncertain how these initiatives affect their parenting arrangements, when children typically need to travel between homes.

While public health directives and government recommendations limit some citizen movement and abilities, they are not intended to interfere with parenting arrangements. It is expected that parenting arrangements, both informal and formal, will continue, as long as it continues to meet the children’s best interest. For instance, the recent limit of travel in and out of the HRM should not affect transitions in parenting time for parents residing in two different municipalities. It can be argued that travel for this purpose is considered “essential”, similar to work, school, or medical appointments.

There may, however, be exceptions that warrant an interruption to the regular parenting arrangements due to COVID-19-related issues. This may include the child and/or parent being in a high-risk health group, or a parent traveling in and out of Nova Scotia from areas requiring a period of self-isolation upon their return. In the event a parent has a reasonable belief that an interruption to the regular parenting schedule is in the child’s best interest, they should make efforts to discuss this with the other parent in an effort to reach a resolution.

Family law and the interruption of regular parenting schedules

Should parents who are subject to a Court Order be unable to reach a resolution amongst themselves, the parent seeking to interrupt the regular parenting schedule should apply to the Court immediately. The parent applying for a change in parenting will bear the burden of proving that there has been a material change in circumstances due to COVID-19-related reasons. This parent will then have to satisfy the Court that their new proposed parenting arrangements are in the children’s best interest.

In the event a parent unilaterally interrupts an informal or formal parenting schedule without the other parent’s knowledge and/or consent, the other parent should immediately apply to the Court to have this issue addressed. The parent choosing to interrupt the regular parenting schedule will have the same burden of proof as noted above.

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What constitutes common law?

A common law relationship is simply the act of living together in a marriage-like relationship without actually being legally married. It does not require any kind of legal process to create a common law union. The definition of common law partnership also differs depending on the laws applied. For example, the Canada Pension Plan states that two people are in a common law relationship after a year of cohabitation. The Parenting and Support Act, on the other hand, requires two years of cohabitation before a relationship can be described as common law.