Part II: Can you restrict parenting due to Covid-19 concerns? Common Sense Prevails?

In the last few weeks, the Provincial Court of British Columbia has released several decisions concerning parenting issues caused by the COVID-19 pandemic. The theme is a sensible one: common sense must prevail. The presence of a risk of COVID-19 transmission alone is not enough of a reason to suspend parenting time, as it is rarely possible to completely eliminate the risks presented by COVID-19. What matters more is that every reasonable precaution is being taken, and that all parents have a healthy respect for the severity of the disease. Courts are unlikely to look kindly on poorly-justified applications to restrict parenting time, so it is important that applications be used as a strategy of last resort. Parents should first try to communicate effectively about risk mitigation, and should take care to consider how the COVID crisis is affecting their children’s specific needs.

 

In N.J.B. v. S.F., 2020 BCPC 53, pronounced on April 1, 2020, the father began refusing parenting time to the mother contrary to a court order which was made on February 26, 2020. The father refused parenting time on the basis that the mother was unlikely to be able to comply with social and physical distancing measures and protocols. The father argued that the mother has a history of mental health challenges, which appear to result in her fabricating ideas and experiencing delusions, and that the present COVID-19 crisis is likely to impact her mental health further, and cause her to behave in a manner that will pose a risk to the child. The father also argued that the mother resides in a house with seven other people living with her who might also pose a risk of infection to the child. The court decided that the father should comply with the February 26, 2020 order and allow the mother access to the child. The court found that the mother has mental health issues which was addressed by providing her supervised visits to the child prior to the COVID-19 pandemic. According to the court, based on the current public health guidelines for COVID-19, the concerns in relation to the mother are no greater under COVID-19 than they were before Covid-19. The Court stated that the situation is fluid and that changes to the public health recommendations or a quarantine of any members of the either parent’s household could result in a different outcome.

 

In V.C.S. v. T.S., 2020 BCPC 60, pronounced on April 1, 2020, the mother refused to return the children to the father after having the children for spring break, contrary to an existing court order regarding parenting time. Under the existing court order, the children’s primary place of residence is with the father in Prince George. The mother argued that due to the COVID19 pandemic, it is unsafe for the children to be transported from Pitt Meadows to Prince George, a drive of around eight to nine hours. The mother expressed concerns that the children would need to use public washrooms and stop at gas stations for food, which would increase the risk of being exposed to infection. The Court decided that it was not satisfied, based on the evidence provided by the mother, that there is a measurably increased risk of the children contracting COVID19 by using a public washroom or rest stop during a car trip. The Court found that the current public health guidelines do not find it unsafe to use public washrooms or to attend groceries stores or gas stations. The mother did not provide any evidence to support her contention that the children would contract COVID-19 from using public restrooms. Further, the Court stated that the mother can pack food for the children so that they do not have to stop for food. More importantly, the court found that transporting children to their primary place of residence is, by definition, essential travel. 

 

In S.R. v. M.G., 2020 BCPC 57, pronounced on April 7, 2020, the father refused to return the child to the mother on the basis that she is a licensed practical nurse who treated a patient that was diagnosed with COVID-19 on March 21, 2020. The father argued that the mother should self-isolate for two weeks before seeing the child. The father proposed that, while the mother self-isolates, he would arrange for the mother to see the child from her balcony in her apartment building. The Court found that it was appropriate for the mother to continue to have parenting time with the child. The Court considered that it was in the best interest of the child to have contact with his mother. While there is some risk that the mother could contract the virus at her work, the mother has mitigated that risk by abiding to the precautions for nurses “and then some”.

 

In S.B. v. M.P., 2020 BCPC 68, pronounced on April 16, 2020, the mother and the children flew to another country to visit family before the travel bans on non-essential travels was imposed. The mother and the children were to return by March 27th, 2020, but the mother refused to return the children on the basis that travelling might expose the children to COVID-19. The mother says she planned to return the children to Vancouver, but she would like to wait until it is said to travel again. The father bought an urgent application requesting that the mother return the children back to Vancouver. The court decided that the children should not travel back to Canada while COVID-19 restrictions remained in effect. The court determined that it would require, at a minimum, a 14-hour of travel time for the children to come back to Vancouver, which would include stopovers in two American cities. It would likely require a greater amount of time and more stopovers if other flights had to be booked. Such a trip would put the children’s health at risk unnecessarily and would not be in their best interests. The court determined that, while it is far from optimal, the children’s relationship with the father could be fostered and maintained through electronic means during the COVID-19 pandemic.

 

In L.R. v. A.L., 2020 BCPC 72, pronounced on April 17, 2020, the mother refused to return a child to the father because the father had refused to provide assurances that he would administer asthma medication to child while the child was in the father’s care. The mother said that this had become a pressing issue while the Covid-19 virus was present in the community. While the father agreed that he was prepared to administer child’s asthma inhaler in the event that the child became ill with a respiratory illness, he did not accept that the child in fact has asthma and was unwilling to administer inhalers to prevent the onset of respiratory illness. Prior to the COVID-19 pandemic, the child had been seen by numerous physicians and they advised the parents to administer inhalers to the child. The father refused to provide the inhaler to the child. Despite the father’s refusal to administer the inhalers, the mother followed the court order and took no steps to reduce the father’s time with the child. However, during the week of spring break, as the pandemic continued to evolve, the mother became increasingly apprehensive about the father’s refusal to administer child’s inhalers. The mother requested that the father show her that he had inhalers for the child but the father refused. Consequently, the mother refused to return the child to the father. The mother subsequently visited a physician who further stressed the importance of administering inhalers to the child. The Court found that the mother’s evidence that the child has asthma was more persuasive than the evidence to the contrary presented by the father. The Court determined that the mother’s denial of the father’s parenting time was not wrongful in accordance with s. 61 and 62 of the Family Law Act. The Court ordered that the father’s time be reinstated, but also ordered that the father to comply with all asthma treatments as recommended by the child’s primary physicians.

 

In J.R.K.P. v. L.A.S., 2020 BCPC 73, pronounced on April 20, 2020, the mother made an urgent application to court on the basis that the father was refusing to permit the mother to have parenting time “because of COVID-19”. The mother also wanted the father’s parenting time to be altered because the he lives in a home with his mother who performs elder care in a care home. The father did not get a chance to respond to the mother’s urgent application, so the court provided the parties with some guidance which is instructive to parents in British Columbia during the COVID-19 pandemic. On the issue of the father’s refusal to allow parenting time to the mother, the court commented that:

“…parents who use the current pandemic as a tactic to deny parenting time to the other parent, without any other further justification for doing so, are not acting in the child’s best interest. Parents who attempt to create fear in the mind of a child by suggesting that the child is at risk by being in the care of the other parent, without any objective justification for doing so are also not acting in the child’s best interests. Such parents who take this approach risk jeopardizing their own position for maintaining whatever parental responsibilities they enjoy.” 

On the issue of the father living with his mother, the court stated:

“…the mere possibility that a person in someone’s home may have been in contact with someone carrying the virus is not a valid reason for denial of parenting time. If this was the case, those health care workers directly dealing with this pandemic would not be having contact with their own children. In order for COVID-19 concerns to prevent contact between a parent and child, there must be a more substantive reason for denial of contact, supported by some form of objective medical evidence, rather than the lay opinion of one of the parties themselves.”

Conclusion

In summary, the Provincial Court is echoing the position seen elsewhere in Canada and saying that parents must use a common sense approach to parenting during the COVID-19 pandemic. It is rarely prudent to restrict parenting time to another parent without a court order. Effective communication between parents will help parents to be clear about risk-mitigation strategies, and to recognize and meet their children’s unique needs during this exceptional time. 

If you are concerned about parenting issues during the COVID-19 pandemic, Crease Harman’s team of divorce and family lawyers available for phone or video consultations, and to help put your mind at ease. Contact us here.

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