Denial of Parenting Time and COVID19: Courts Grapple with Health Guidelines in BC

Denial of parenting time due to the new BC COVID-19 health guidelines continues to rise. The guidelines can be ambiguous at times and our courts have been busy dealing with them and providing guidance to separated parents.

As Honourable Justice Kent once said, relationships come in as many different shapes and forms as we come as humans. He once again found himself having to deal with a case where the unique relationship choices of a father made the mother prevent his access to his children.

Polyamory, New Partner, Parenting During COVID19

Here is a summary of the facts of the case: Buckman v. Wyckham:

1. The parents separated in 2019 and settled their differences via a final Order that provided each with 50/50 parenting;
2. The father went on to find a new partner. Both the father and the new partner believed in polyamory which essentially allows for multi-partner relationships;
3. The new partner has a husband who she is very much in love with, just like she is with the father;
4. The new partner would visit the father’s home regularly and was/is intending to move in together.
5. The mother became alarmed at the nature of the father’s new relationship and the children being exposed to it;
6. Her concerns reached a new level with the introduction of the new COVID19 guidelines which essentially say one cannot be in any gatherings outside of his/her immediate household (with limited exception);

The mother also asked the court to disallow the father from exposing the children to his polyamory relationship.

Denial of Parenting Time with the Father

Under the new guidelines, single people are allowed to visit with one or 2 people in their core bubble. But in this situation, the father was not ‘single’ as he had a new partner. The guidelines have not provided a clear understanding of what happens when a separated parent re-partners during COVID19 or when he/she wants to move in or visit with such a partner.

The mother took the position that:

• the new partner was not allowed to be around the children because of the guidelines;
• the new partner was not allowed to be around the father because of the health guidelines;
• since the father would not agree to isolate himself from the new partner, the children could not see him.

The father on the other hand:

• found it ridiculous that he couldn’t see his children because of his new partner.
• he reasoned that both himself and his new partner did not see anyone outside of their bubble, and neither were dating other people.
• That he was being reasonable, cautious and careful.

The Court Clarified the Health Guidelines Relating to the Parents

Justice Kent analyzed the guidelines in detail and found as follows:

1. In normal situations, children could go back and forth between ‘co-parents’ – meaning parents who have separated.
2. In this situation, the health guidelines allow for a person to visit the ‘vacation accommodation’ of another person with whom he/she resides.
3. A ‘vacation accommodation’ is defined as any place aside from one’s primary residence.
4. In this situation, the Court interpreted the new partner’s situation as follows:

For her, the father’s apartment is “living accommodation” which is not her “primary residence” that she regularly “occupies”. In these unique circumstances, while she has a “private residence” in Vancouver, the new partner is also “an individual who occupies vacation accommodation” when she spends time with the father in Squamish and she is thus an “occupant” of his apartment for the purposes of the PHOs.

He went on to conclude that the father and the new partner were not breaching the BC provincial health guidelines by spending time together. He ordered the father’s parenting time with the children to be resumed. He also ordered that the father would enjoy make-up parenting time for the time he missed with the children.

Important Guidelines by the Court and Parenting Disputes

In my previous blog on parenting disputes and COVID-19, I went through multiple cases where parents with different situations had to deal with COVID19 guidelines and parenting disputes.

Justice Kent in this case added the following words of wisdom:

1. The situation of the parents gave rise to significant interpretation
   issues about which reasonable people could reasonably disagree.
2. The court’s role is to ensure the protection and promotion of the best interests of the children as the paramount consideration in parenting decision-making.
3. He cited another case with an agreement that provided the following guidelines on parenting and COVID-19:

• COVID-19 parenting issues will be decided on a case-by-case basis as each
  case is different and involves unique circumstances;
• the court expects parents to meticulously adhere to all COVID-19 safety
  measures, including social distancing, use of disinfectants, and compliance
  with public safety directives;
• the court also expects parents to demonstrate sensible insight, meaningful
  COVID-19 awareness, and all appropriate precautions necessary to protect
  the children;
• the parents must do whatever they can to ensure that neither they nor their
  children contract COVID-19 – every precautionary measure recommended by
  governments and health authorities must be taken by both parents and, with
  their help, by the children; and
• Neither parent should do anything that will expose themselves or the child to
  an increased risk of contracting the virus.

At YLaw, we have dealt with numerous COVID-19 and parenting dispute cases. Call us at 604-974-9529 or get in touch to talk about your unique case, and how to resolve it.