Following a slew of recent British Columbia court cases centered on family arrangements during the COVID-19 pandemic, it is clear that what one’s rights are is not actually clear at all. In fact, the implications of British Columbia’s public health orders and responses to COVID-19 have been described as being “fraught with ambiguity”, especially regarding custody arrangements. These recent cases highlight how muddy these laws and public health orders are.
A few notable cases have come out of British Columbia aimed at addressing disputes between parents over access to their children during the pandemic. An April 2020 decision revolves around a dispute where the father effectively prevented the mother from spending time with their shared child, as per a prior order. The father emphasized the risks of COVID-19 and health and safety concerns as reasons for not adhering to this order. The court decided that ultimately, the mother was entitled to spend her time with the child as the order dictated, and that the father’s actions were not done in bad faith and “were not unreasonable, albeit incorrect”. The court also cited an Ontario decision where the court mandated that they are to “deal with COVID-19 parenting issues on a case-by-case basis”.
In May 2020, a decision was released regarding a dispute whereby the father and mother of two children disagreed on the parenting arrangement. While the father sought to increase his access and contact with the children, the mother opposed this and cited a multitude of reasons for doing so—including concerns about COVID-19. In this case, the court opted for an arrangement that was “in between” the arrangement that each party wanted, and the father’s contact and visitation rights in regards to the children increased incrementally.
Furthermore, the court also took the opportunity to more explicitly lay out how courts ought to approach parenting disputes in the pandemic. In particular, the court outlined five principles that are to guide decision-making. First, COVID-19 must not be used an excuse to deny one parent his or her parenting rights. Second, just because a child must travel between homes is not enough in itself sufficient reason to justify non-adherence to an arrangement. Third, parents must be flexible in their approach and compliant with governmental health orders. Fourth, a parent who does not follow these orders may not be able to spend time with his or her children. Finally, the court must prioritize the best interests of the child—especially in situations where a child may be at a more significant risk because of COVID-19.
What an appropriate parenting arrangement looks like during the COVID-19 pandemic becomes even trickier as the situation becomes more complicated. For instance, in a December 2020 decision, the court had to grapple with circumstances where one parent was spending time with a new partner—conduct that the other parent alleged as a breach of public health order. In another decision, the court was forced to make a difficult decision centering around an asthmatic child on immune suppressants, who lived with foster parents whose age put them at a greater risk of suffering harm from contracting COVID.  In that decision, the court decided that although the child was beginning to establish more of a relationship with her biological father, her visits with the father were to be suspended in light of COVID-19. Ultimately, these cases illuminate how ambiguous and unclear provincial health orders are in relation to complicated situations such as parenting arrangements. In an area where the best interests of the child is often paramount, and in situations where there are many competing interests that are fundamental to the lives of all the parties involved, it is unlikely that confusing and unclear laws will cause anything but harm.
This blog post was written by a CCLA-PBSC Rights Watch Student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.
The Canadian Press, “Co-parenting case highlights ambiguity of public health orders: B.C. judge”, CTV News (5 January 2021), online: <https://bc.ctvnews.ca/co-parenting-case-highlights-ambiguity-of-public-health-orders-b-c-judge-1.5254177>.
N.J.B. v S.F., 2020 BCPC 53.
Ibid at para 38.
Ibid at para 31.
C.G.R. v J.L.R., 2020 BCSC 790.
Ibid at para 30.
Ibid at para 20.
Buckman v Wyckham, 2020 BCSC 2076.
British Columba (Child, Family and Community Service) v C.M.K., 2020 BCPC 105.