The COVID-19 pandemic has created challenges for families in 2020. Lockdowns, isolation, job loss, financial insecurities, stressors of homeschooling and lack of childcare have all put incredible pressures on families, driving many to the breaking point. As has been reported widely, the pandemic has seen an unprecedented rise in family breakdown, domestic violence and concerns related to child welfare.
Education Decision Making
Some of the chief challenges families have faced have been into decision making related to schooling. Shortly into the pandemic, we saw an increase in litigation with urgent motions advanced regarding parenting schedules and decision-making for children of parents who are separated. As always, the best interests of children are our Courts’ focus, with considerations arising from the COVID-19 pandemic being no different. However, additional factors our Courts considered when determining whether children should remain at home enrolled in “virtual learning,” or whether to resume in-class attendance, included the potential risk of harm to the child or other members of the child’s household if exposed to COVID-19 by virtue of being in a brick and mortar environment, including the health of the child and immunocompromised family members. Decisions were factually driven, case by case, with Quebec being the first province to weigh in on these issues.
In addition to the child’s health and the health of the child’s family members living in his or her residence, judges considered whether schools were equipped to take the proper precautions, and the parents’ work schedules and ability to stay home to support their child(ren) in a virtual learning environment. An important factor that was not paid enough attention in the case law, but must also be considered, is the accessibility of online learning for students with disabilities and/or receiving special education supports and services.
While on balance school administrators were doing their best to shift from an in-class to virtual learning environment, implementing a student’s Individual Education Plan (IEP) for special education was challenging, if not impossible, in the virtual learning environment. Disability organizations throughout the province have been advocating for the government and school boards to proactively implement accommodations and policies that will ensure students receiving special education to have the same access to meaningful education as their peers in the virtual learning environment.
Amendments to Divorce Act and other Family Law Legislation
In other family law news, Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, received Royal Assent on June 21, 2019 and will finally come into force and effect on March 1, 2021 (the coming into force was delayed due to the COVID-19 pandemic).
These amendments are the first substantive changes to federal family laws in more than 20 years. An important and necessary change to the Divorce Act is the replacement of the often confusing and outdated terminology of “custody” and “access” with “decision-making responsibility” and “parenting time”. The changes also clarify and broaden the court’s consideration of factors to determine the “best interests of the child” and materially impact the legal framework regarding relocation/mobility, among many other important changes.
A complete list of the Divorce Act changes can be found on the Department of Justice website: https://justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html
Family Law Webinar Series
PooranLaw has focused its family law webinars this past year on support for an adult child with a disability. Next year, we will address issues regarding spousal support entitlements for a primary caregiver of a child with a disability. Stay tuned for information on this upcoming webinar series.
As always, PooranLaw will continue to monitor family law developments and provide updates on our website. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
