B.C. Supreme Court in Vancouver on Tuesday December 11, 2018. THE CANADIAN PRESS/Darryl Dyck

B.C. Supreme Court in Vancouver on Tuesday December 11, 2018. THE CANADIAN PRESS/Darryl Dyck

COVID-19 rules in B.C. ‘fraught’ with ambiguity: judge in child custody case

Justice Nigel Kent says public health orders designed to reduce the spread of COVID-19 aren’t clear

A British Columbia Supreme Court judge says the province’s public health orders on COVID-19 are “fraught with inconsistency and ambiguity” in ruling on a dispute between former spouses on the custody of their children.

Justice Nigel Kent says public health orders designed to reduce the spread of COVID-19 aren’t clear and “provide very limited express direction” to families that are navigating co-parenting responsibilities.

In his judgment dated Dec. 22, Kent rules in favour of the father continuing to have shared parental responsibility after the mother withheld his regular parenting time with the children over the public health orders and her concerns about his new relationship.

She believed that the time the father spends with his new partner breaches the orders and “poses an intolerable risk to the health of the children,” the judgment says.

“It is not surprising that reasonable people can reasonably disagree about their interpretation and application in any given circumstance,” Kent writes in the decision.

The confusion was “graphically demonstrated,” when Premier John Horgan, relying on advice from Health Minister Adrian Dix, announced his intention to spend Christmas Day with his son and daughter-in-law. Horgan “was obliged to change his plans when it was pointed out to him that such a gathering was actually a breach,” Kent writes.

Following their separation in 2019, the father became polyamorous and began seeing a woman after meeting her and her husband through a support group, the decision says.

The new partner spends time and has sexual relations with both men. The new relationship has caused some distress for the mother, who is concerned about both introducing their children to the new partner and to the concept of polyamory, it says.

“This distress has been heightened by the COVID-19 pandemic and, most recently, the issuance of several (public health orders) in the province significantly restraining social engagement,” Kent writes.

The father says he is in a loving relationship with his new partner and none of those in the relationship, including the husband, are dating anyone else. They also do not plan on introducing new partners while the health restrictions are in place, the judgment says.

The father “quite accurately” says the information published on the provincial health officer’s website is not clear on how restrictions apply to a co-parent whose kids only live with a parent half the time, Kent writes.

The father interprets the restrictions to mean a co-parent in his situation is permitted to include his new partner in his “core bubble.”

The judge notes that the restrictions have been amended, repealed and replaced over time.

“The messaging accompanying these orders, and indeed the language of these orders themselves, is fraught with inconsistency and ambiguity,” Kent writes.

On Nov. 13, the provincial health officer introduced restrictions that said “no person may have present at a private residence or vacation accommodation, either inside or outside, a person who does not reside with them,” although a person who lives alone may host one or two people with whom the person regularly interacts.

On Dec. 9 and 15, Dr. Bonnie Henry defined some of the terms of gatherings and events. Among the definitions, she said a “vacation accommodation” means a house, apartment, condo or other living accommodation that is not the occupant’s primary residence.

However, some language in the order remains undefined, including what is meant by gatherings, someone living on their own, and regular interaction.

There are also possible ambiguities surrounding people who may use two or more residences from time to time, the judge says.

“Despite its obvious potential application to parents with children, these orders provide very limited express direction for family units and parenting regimes in all their various forms,” Kent says.

“One of the issues in dispute in this case is whether a parent who has two small children qualifies as a person ‘living on their own,’ whether generally or for the time he/she is not parenting the children, and hence is entitled to socialize with two other people with whom he/she ‘regularly interacts,’ ” he says.

Another issue is whether another person can move into the parent’s household during the term of the public health order and hence become and “occupant.”

In reviewing the case, Kent said he found the father’s residence outside Vancouver to be defined as the new partner’s “vacation accommodation,” as she lives there when not living at home. She is thus an “occupant” of the father’s home for the purposes of interpreting the orders.

There is also no evidence that the father or his new partner are behaving recklessly, the judge says.

Amy Smart, The Canadian Press

Like us on Facebook and follow us on Twitter.

Want to support local journalism? Make a donation here.

Court

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A power outage Thursday night left nearly 3,000 homes in Clinton and the 70 Mile areas in the dark. (Katie McCullough photo).
Nearly 3,000 homes in Clinton, 70 Mile left in the dark after vehicle crash into transmission pole

BC Hydro still working to restore power to 330 homes in 70 Mile House

A woman wearing a protective face mask to curb the spread of COVID-19 walks past a mural in Victoria, B.C., on Monday, Dec. 7, 2020. THE CANADIAN PRESS/Marissa Tiel
115 new COVID-19 cases, no new deaths in Interior Health

There are now a total of 4,970 cases in the region

Community consultation is now open regarding disposal of the former Ashcroft Elementary property, which since 2015 has operated as the Ashcroft HUB. (Photo credit: Vicci Weller)
Feedback now sought regarding disposal of Ashcroft Elementary

Residents of the region can have their say about the future of the former AES property

(from l) Ashcroft IDA store manager Irene Dumont; Christmas Hamper organizer Esther Lang; IDA staff Trish Lambert, Cheryl Scanlon, Tracey Nontell, Rod Schafer, Alicia Lake, Trina Michaud (behind Alicia), and Silvia Caston. IDA matched customer donations to the 2020 Christmas Hamper program. (Photo credit: Barbara Roden)
COVID couldn’t put a crimp in this year’s Christmas hamper program

171 hampers were distributed to families in Clinton, Cache Creek, Ashcroft, Spences Bridge

A woman wears a face mask and shield to curb the spread of COVID-19 while walking in North Vancouver, B.C., on Wednesday, January 6, 2020. THE CANADIAN PRESS/Darryl Dyck
536 COVID cases, 7 deaths reported as B.C. find its first case of South African variant

Henry said 69,746 people have received their first dose of the COVID vaccine.

Prime Minister Justin Trudeau listens to a question during a news conference outside Rideau cottage in Ottawa, Friday, January 8, 2021. THE CANADIAN PRESS/Adrian Wyld
Trudeau says Canada’s COVID vaccine plan on track despite Pfizer cutting back deliveries

Canadian officials says it will still likely receive four million doses by the end of March

Letisha Reimer died Nov. 1, 2016 after being stabbed at Abbotsford Senior Secondary.
No evidence that killer was in ‘psychotic state’ during Abbotsford school stabbing: Crown

Second day of closing arguments at ‘not criminally responsible’ hearing for Gabriel Klein

Alan Davidson was sentenced to almost six years for abusing seven boys in the late 1970s and early 1990s. (Canadian Press file)
Full parole granted to former Mountie, sports coach convicted of sex abuse of boys

Alan Davidson convicted of abusing boys in B.C. and Saskatchewan in late ’70s, early ’90s

The first COVID-19 vaccine arrives in B.C. in temperature-controlled containers, Dec. 13, 2020. (B.C. government)
More vaccine arrives as B.C. struggles with remote COVID-19 cases

Long-term care homes remain focus for public health

The first Pfizer-BioNTech COVID-19 vaccine dose in Canada is prepared at The Michener Institute in Toronto on Monday, Dec. 14, 2020. THE CANADIAN PRESS/Frank Gunn
Doses of COVID-19 vaccine expected in 60 B.C. First Nations by next week

B.C. has allocated 25,000 doses of COVID-19 vaccine to First Nations for distribution by the end of February

Kamloops-South Thompson MLA Todd Stone questions the NDP government in the B.C. legislature, Feb. 25, 2020. (Hansard TV)
Todd Stone says he’s not running for B.C. Liberal leadership

Kamloops MLA was widely viewed as a front-runner

Wireless voice and data services are out for those on Telus as of Thursday (Jan. 14) afternoon across Western Canada, Telus Support said in a recent Tweet. (Black Press file photo)
UPDATE: Telus services restored across Western Canada

Telus said they are monitoring the situation to ensure connections remain stable

Most Read