The COVID-19 public health orders made over the past few months (the "PHOs") have led to many questions about how they apply to separated spouses in the family law context. Importantly, the PHOs are unclear on how its restrictions apply to a co-parent whose children are only living with them part-time. The Supreme Court of British Columbia recently provided guidance on the application of the PHOs to separated spouses who have re-partnered after separation.
In Buckman v. Wyckham, 2020 BCSC 2076, the father had entered a polyamorous relationship with a married couple after separation. His new partner moved in with him in December of 2020, but also spent time with her husband in Vancouver. The mother withheld the children from parenting time with the father because she perceived a health risk as a result of the new partner living with him. The father sought an order that the mother wrongfully denied parenting time to him. The mother applied for an order determining whether the father breached the PHOs.
The Court commented that that the language of the PHOs is "fraught with inconsistency and ambiguity." The Court reviewed the PHOs of November 13, December 9, and December 15, 2020 and noted that the concept of "regular interaction" is not defined, nor is it clear that a co-parent is "living on their own" such that they can be present for social purposes in a private residence of another person.
The Court found that the new partner spent more than 50% of her time with her husband in Vancouver such that her home there was her "primary residence." The children were "occupants" of both parents' residences under the PHOs. The new partner had a key and fob to the father's home, a parking spot there, and kept clothes, toiletries, and cookware at the father's home. Based on these factors, the Court found that she lived with the father when not at her home in Vancouver such that she was "an individual who occupies vacation accommodation" when she spent time with the father in Squamish. Therefore, she was an "occupant" of his apartment for the purposes of the PHOs. The Court found that neither the father nor the new partner were in breach of the PHOs when the new partner spent time at the Squamish apartment. Accordingly, the mother's denial of parenting time was in error, though the Court also noted that "given the ambiguities which riddle the PHO regime, one is not inclined to judge her harshly."
The Court required that the parents abide by factors emphasized by courts across the country based on Ribeiro v. Wright, 2020 ONSC 1829, which it summarized as follows:
- 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.
Given the ambiguity of the PHOs, the Court declined to award costs to either party and did not fault the mother for withholding parenting time while she sought the assistance of the Court. However, the Court has previously indicated that COVID-19 concerns should not be used as a justification for withholding parenting time absent some concern that the health of a child or someone in the child's household would be at risk. Each case is unique and will depend on the specific situation. If you have any questions regarding co-parenting during the pandemic, please contact a member of the Family Law Group.
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