Russell Alexander, Founder and Senior Partner of Russell Alexander Collaborative Family Lawyers. – Photo supplied
By Laura E. Young
SUDBURY – While the COVID-19 pandemic has made life complicated, some things seem to have stayed the same when it comes to children and custody.
The starting point is always what is in the child’s best interests and avoid going to court whenever possible, according to a family law attorney with offices across Ontario.
“There are still many creative ways to resolve matters peacefully and respectfully while ensuring that your family stays safe outside of the judicial system,” said Russell Alexander, founder of the Russell Alexander Collaborative Family Lawyers. “When you go to court, it can be expensive and there can be delays. You give up your decision-making and let a judge decide what is right for your family. “
In September, the company issued a press release warning that unvaccinated parents are at risk of losing custody or access to their children.
Alexander says he’s trying to share information and explain how courts might deal with vaccine-related issues. This is not an assessment of people in relation to their personal choices, he adds.
Courts tend to obey government policies and protocols unless there are medical exceptions, he says.
A parent who has had a negative reaction to vaccines is an exception, but he adds that those parents should get a note from their doctor and be able to document their reasons just in case.
If there is a dispute and the parents disagree, the court will give the parent who wants the child vaccinated to make decisions about that decision, he says.
Custody issues are delicate at best, so he recommends reaching out to professionals such as social workers, mediators, or lawyers to negotiate an out-of-court solution.
Unless it was an emergency situation, it would take months to resolve a matter, he added.
“Also, let a judge who is a third party, who doesn’t know your family, who will likely never meet your children, decide what is right for you and your family,” he explains. “If you can get an out-of-court settlement, that’s probably the best option.”
There are people who disagree with vaccinations or the pandemic is as bad as reported, but legal proceedings can also prove to be potentially problematic, he says.
“The judge will decide what is in the best interests of the child and what the government recommends regarding vaccinations and other safety protocols.”
In his practice he sees how hard the autumn time is for separated families even without a pandemic.
“You now bring with you whether the child should study remotely at home or go to school in person. This is a whole new point of contention for parents, ”he says. “Some parents don’t have the ability [for their children to attend] School from afar. They don’t have the technology, expertise, or daycare and other support that they need. So it was very difficult for families. Now we add the question of vaccinations. “
The potential of the fourth wave and further restrictions would have created even more uncertainty, he says.
Parents try to plan their children’s school year with their own work life. Some employers require workers to be vaccinated or to be fired. This scenario creates economic trouble when there is no revenue, he says.
There have also been reports of court delays.
He says courts are traditionally paper-based but are moving to a digital system. In 2020, anything will be closed that creates a bottleneck in legal proceedings. Then when the court responded, people learned the technology and adapted to the sessions via video, he recalls.
“These are completely new skills that everyone has to learn.”
The courts will act quickly in emergencies where the child is at risk, especially if safety protocols are not followed, he says.
“The court will step in and urgently order and make sure the child is protected.”
Early cases have shown that a parent has lost physical access to their children when, for example, there is a risk to children when safety protocols are not followed.
That hasn’t happened in Ontario yet, he says.
Still, he’s pondering the ever-changing landscape of the pandemic, with variants popping up and the possibility of further restrictions on the public. Related to this, there could be someone who chooses not to get vaccinated. The courts could argue that this is enough to change parenting rules, he says.
“You can see the problems developing in the pandemic.”
Alexander says it is important to do your best to find a solution with the other parent or ex-spouse.
He’s seen parents work together and adjust their arrangements. Most of the cases don’t go to court, he adds.
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