COVID19: BC Courts Speak on Parenting Disputes

Since COVID19 broke out, the BC Courts have heard numerous urgent applications relating to parenting disputes. They have provided guidelines on how to co-parent during the pandemic. Custody issues are generally resolved through the Provincial Court and the Supreme Court of BC. Here are the latest cases and commentary from our judges on parenting disputes and how to resolve them during Coronavirus times:

Case: The Mother Nurse Who Treated A COVID19 Patient

CASE:  S.R. v. M.G., 2020 BCPC 57:

Facts 

• The mother is a nurse who treated a patient with COVID19; she went into self-isolation for 14 days after treating the patient.
• The father runs a demolition company which continues to operate. He does go to his office from time to time.
• The father began denying parenting time to the mother given that she had come in contact with a COVID19 patient.
• The father was proposing video contact or in-person contact where the child would see the mother from her balcony.

Reasoning by the Judge 

The Court stated:

Now that the virus is spreading in the community, we are exposing ourselves..by accessing any services, whatsoever.  This includes receiving the newspaper or mail, purchasing groceries, attending at a bank, or going for a walk.

The judge provided a number of factors to consider in determining parenting issues during COVID19:

1. Whether the child is at a higher risk of suffering the more severe consequences of the virus;
2. Whether either party or those in their household are at higher risk of suffering the more severe consequences of the virus;
3. Each party’s exposure to the risk of contracting the virus;
4.  Steps taken by each party to mitigate the risk of exposure;
5. In the larger context, society’s need to maintain and access resources in the community, including health care and other ventures that provide services and income for families in a safe manner over an extended period of time.

The judge acknowledged that “some of these workers are choosing not to return home to their families when they live with particularly vulnerable partners, children and parents.”

Results

The parents were ordered to ensure that the child sees both parents.

This case is interesting because while the mother might be seen as being in a “riskier-than-normal” occupation, simply grocery shopping involves a level of risk as well.

The risk that the mother experiences, which she has taken steps to mitigate, is not so much more elevated than the risk the father also experiences. The risk to the mother is not to the point that the child should be deprived of parenting time with her, given the benefits to the child of time with both parents.

The Traveling Children Case 

CASE: V.C.S. v. T.S., 2020 BCPC 60

Facts

• The mother lives in Lower Mainland. The father lives in Prince George.
• Father has primary residence of the children and mother has parenting time with them during the holidays.
• The father brought the children via car to the Lower Mainland to visit the mother. When he tried to have the children back to PG, the mother refused.
• The mother reasoned that given the pandemic, it would be unsafe to transport the children because they would have to get off the car, eat and use public washrooms which would increase the chances of contracting COVID19.

Reasoning by the Judge 

The judge stated that:

1. That are no policies or rules that prevent people from having take out or drive through food;
2. There are no policies or rules that would prevent people from using public washrooms;
3. Neither the children nor the parents had COVID19.
4. The mother had no issues with the father bringing the kids down to visit her during the COVID19 but now was saying that it would be unsafe to return them to the father.

Result 

The children were ordered to travel back to Prince George to be with the father.

The Court stated:

[21]        It is evident that our health authorities deem it safe for Canadians to continue to enter grocery stores and gas stations which house public washrooms, provided they practice preventative measures such as social distancing and washing their hands.  I have been provided no evidence as to why it is particularly unsafe for the children to use public washrooms in these facilities when it is not unsafe for other Canadians to do so.

The Mother with Mental and Drug Issues

CASE: N.J.B. v. S.F., 2020 BCPC 53

Facts

• Before COVID19, the mother’s parenting time with the child was supervised by her family members;
• The mother had a history of drug use, mental health concerns and paranoia;
• The father began restricting the mother’s access to the child noting that the mother has never been mentally stable, and will not likely take proper measures to make sure the child is not exposed to the virus;
• The father reasoned that the mother is unable to have a rational, logical mind and was putting the child at risk during very risky times.

Reasoning by the Judge 

The judge reasoned as follows:

• The father must point out to specific, provable concerns relating to COVID19 and the mother’s inability to manage the child;
• The mother’s history was nothing new, and her parenting time was supervised so those concerns were already addressed prior to COVID19;
• Parenting arrangements should be respected as much as possible during COVID19 unless there are serious and real concerns to justify changing or limiting access to children.
• The judge also quoted and endorsed some very useful guidelines from experts and some Ontario cases relating to COVID19 which everyone should read:

[28]        Dr. Elterman describes a variety of common parenting decisions that may increase risks for both the child and the community, and should form part of decisions regarding parenting arrangements. They include:

1.  If a parent has had contact with an infected party, they should disclose this immediately to the other parent.
2.  If the parent is infected or even ill with symptoms or needed to be tested for Covid-19, they should not take the child.
3.  If the parent is in a home with older family members or friends or with individuals who are immune-compromised, the child should not be in that home.
4. There should be no play dates and the child should not be taken to family or social gatherings.
5. If parenting time is to occur in a public place such as a community centre, a mall or a restaurant, then it should be suspended.
6. If a supervisor is required and who is not the spouse of the parent and living in the home, then the parenting time should be suspended.
7.  If either parent or anyone in the household is in an Essential Service or still working with the public, eg. doctors, nurses, at a supermarket or pharmacy, flight attendant, etc.) then this can represent an increased risk to the child.

[29]        In my view, these are all reasonable recommendations, and consistent with what I understand to be the recommendations of public health officials, at this time. Although public health guidelines are not technically before the Court, in my view, and particularly under the exigent and evolving circumstances that we all currently face, I am able to take judicial notice of those guidelines, which include social distancing, frequent washing of hands and avoiding non-essential travel.

[30]        There are a few written decisions that have emerged in Ontario that have begun to address the family issues arising in the context of Covid-19. In Le v. Norris 2020 ONSC 1932, the Court considered a case in which the mother was withholding parenting time for the father contrary to a Court Order due to her concerns about Covid-19 transmission. The Court ordered compliance with the parenting Order and in doing so said the following:

[11]  In addition, something direct must be said about Le’s worries and anxiety about the COVID-19 health crisis. Those concerns, this Court sympathizes with and understands and can even relate to (notwithstanding my relative privileged existence, far removed from the toils of those working on the front lines to supply and treat me and my neighbours). But, at the same time, those concerns can be addressed through responsible adherence to the existing Court Order.

[12]  This Court orders that the December 5, 2019 Order of Kurz J., with regard to access between Norris and the child C., shall be complied with in all respects. This Court orders, further, that the police are hereby authorized to enforce the said Order, and the one made herein.

[13]  Finally, what do I mean by “responsible adherence to the existing Court Order”? I mean being practical and having some basic common sense. Physical distancing measures must be respected. The parties must do whatever they can to ensure that neither of them nor the child, C., contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by C. Neither party shall do anything that will expose him/herself or C. to an increased risk of contracting the virus.

[31]        In Ribeiro v. Wright 2020 ONSC 1829, the Court said the following:

[21]  We will deal with COVID-19 parenting issues on a case-by-case basis.

1. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
2. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
3. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
4. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

…

[23]  Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

…

Result

The judge ordered the mother’s parenting time to be resumed.

Summary and Takeaway

The short summary of all of the above is that time with both parents are important. And that, to some degree, nearly everyone is engaging in activities that have some level of risk.

If:

• parenting arrangements require transportation or driving to another community,
• one of the parents is in a riskier occupation,
• one of the parents has a track record of previous irrational behaviour, etc

Those concerns are insufficient to withhold parenting time. It is generally expected that parenting orders or arrangements will be obeyed and that children will continue to see both parents in these times, absent very extraordinary and concrete issues.  Courts are taking the view that time with parents continues to be beneficial and children are entitled to it.

If you have any concerns relating to parenting and the COVID19 era, call us at 604-974-9529 or get in touch.