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

(Black Press Media file photo)
Blue-green algae bloom confirmed in Elk Lake, water-based activities not recommended

Blue-green algae can be lethal to dogs, cause health issues for humans

Victoria police arrested a man Jan. 15 after he rammed his minivan into an occupied police vehicle. (Black Press Media file photo)
Victoria man arrested for ramming minivan into occupied police vehicle

Man caught after fleeing, crashing into cement retaining wall

Mayor Rob Martin and Costa Canna president Phil Floucault cut the ribbon on Colwood’s first cannabis retail store. (Jane Skrypnek/News Staff)
Cowichan Tribes’ Costa Canna cannabis store opens in Colwood

Cowichan Tribes has one-year deal to grow, sell cannabis

Cindy Foggit plays the lead role of Eliza in Passion and Performance’s film production Eliza: An Adaption of a Christmas Carol. (Courtesy of Rachel Paish)
Victoria adult dance studio releases modern adaption of A Christmas Carol

Instead of usual stage performance, dance studio turns to film

Standardized foundation skills assessment tests in B.C. schools will be going ahead later than usual, from Feb. 16 to March 12 for students in Grades 4 and 7. (Black Press Media file photo)
COVID-affected school year perfect time to end standardized tests: Greater Victoria teacher union

Foundational skills testing of Grade 4 and 7 students planned for February ad March

Keith the curious kitten is seen on Nov. 4, 2020 at the Chilliwack SPCA. Friday, Jan. 22, 2021 is Answer Your Cat’s Questions Day. (Jenna Hauck/ Chilliwack Progress file)
Unofficial holidays: Here’s what people are celebrating for the week of Jan. 17 to 23

Answer Your Cat’s Questions Day, Pie Day and International Sweatpants Day are all coming up this week

JaHyung Lee, “Canada’s oldest senior” at 110 years old, received his first dose of the COVID-19 vaccine on Thursday, Jan. 14, 2021. He lives at Amenida Seniors Community in Newton. (Submitted photo: Amenida Seniors Community)
A unique-looking deer has been visiting a Nanoose Bay property with its mother. (Frieda Van der Ree photo)
A deer with 3 ears? Unique animal routinely visits B.C. property

Experts say interesting look may be result of an injury rather than an odd birth defect

Terry David Mulligan. (Submitted photo)
Podcast: Interview with longtime actor/broadcaster and B.C. resident Terry David Mulligan

Podcast: Talk includes TDM’s RCMP career, radio, TV, wine, Janis Joplin and much more

Seasonal influenza vaccine is administered starting each fall in B.C. and around the world. (Langley Advance Times)
After 30,000 tests, influenza virtually nowhere to be found in B.C.

COVID-19 precautions have eliminated seasonal infection

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 say country will still likely receive four million doses by the end of March

Jobs Minister Ravi Kahlon shared a handwritten note his son received on Jan. 13, 2021. (Ravi Kahlon/Twitter)
Proud dad moment: B.C. minister’s son, 10, receives handwritten note for act of kindness

North Delta MLA took to Twitter to share a letter his son received from a new kid at school

Lilly and Poppy, two cats owned by Kalmar Cat Hotel ownder Donna Goodenough, both have cerebellAr hypoplasia, a genetic neurological condition that affects their ability to control their muscles and bones. Photo by Alistair Taylor – Campbell River Mirror
VIDEO: Wobbly Cats a riot of flailing legs and paws but bundles of love and joy to their owner

Woman urges others to not fear adopting cats with disabilities

Dr. Shannon Waters, the medical health officer for the Cowichan Valley Region, is reminding people to stay the course with COVID-19 measures. (File photo)
‘Stay the course’ with COVID measures, Island Health reminds

Limit social activity, wash hands, wear a mask, and isolate if you feel sick

Most Read