IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           C.K.M. has brought an application to have parenting time with his son, E.N.M. who is [omitted for publication]. The matter was determined to be urgent, and I gave written Reasons for that determination that are found at C.K.M. v. L.O.S., 2020 BCPC 75.

[2]           Mr. M. was in a common law relationship with L.O.S., E.’s mother, for approximately seven years, between January 2013 and March 13, 2020.

[3]           Ms. S. took E. with her when she left the family home on March 13, 2020, and has refused to let Mr. M. see him since that date, other than through Skype.

[4]           Mr. M.’s Application for an Urgent Hearing initially came before me on March 25, 2020, and I made an ex parte Order that neither party was to remove E. from the jurisdiction of the Lower Mainland of British Columbia.

[5]           On March 27, 2020, both parties attended Court by way of teleconference. Ms. S. advised me that she had spoken to Shannon O’Keefe, a child protection worker with the Ministry of Child, Family and Community Services on March 26, 2020, the day she would have been served with Mr. M.’s Application for an Urgent Order. She was very clear to me that Ms. O’Keefe had told her to self-isolate for a fourteen-day period because she had been living with friends who worked outside of the home.

[6]           She agreed to allow Mr. M. to see E. through Skype twice a day, and I ordered that those Skype visits would occur. I suggested that the parties attempt mediation through the Family Justice Counsellors once the self-quarantining was completed.

[7]           Mr. M. appeared before Judge La Prairie with respect to his second Application for an Urgent Hearing on April 9, 2020. Judge La Prairie made an Order, in Ms. S.’s absence, giving Mr. M. parenting time over the Easter weekend. He adjourned the determination of urgency to April 17, 2020.

[8]           In granting the Application for an Urgent Order on April 17, 2020, I ordered Ms. S. and Mr. M. to each provide an affidavit with the following information:

[9]           When the matter came before me for the urgent hearing on May 4, 2020, Ms. O’Keefe made herself available by telephone to answer some of the questions I had concerning the Director’s involvement with the family. She said that she interviewed E. on March 24, 2020. She had a conversation with Ms. S. and encouraged Ms. S. to set up visits with Mr. M. She denies ever telling Ms. S. that she should self-isolate.

[10]        Ms. O’Keefe also said that the reason the Director was involved with the family in the first place was due to the verbal argument that occurred on March 6, 2020 between the parties, shortly before separation. She indicates that the Director has no protection concerns about either parent, and that Ms. S. told her that she had no concerns about Mr. M.’s ability to parent E. She also said that Ms. S. did not express any concerns about previous incidents, although Ms. S. disagrees with that statement.

[11]        I see no reason for Ms. O’Keefe to state something that was untrue and, although she was on the telephone, it seemed that she was reviewing her notes while speaking. Accordingly, I can only infer that Ms. S. lied about the recommendation to self-isolate in order to buy herself some time and perhaps give herself an advantage over Mr. M. before the Court.

[12]        Unfortunately, her actions have negatively affected her credibility.

[13]        In making Orders regarding E., I must only take into account his best interests. Under s. 37 of the Family Law Act, the following factors are to be considered:

[14]        I note that the list is non-exhaustive.

[15]        Initially, Mr. M. indicated that E. had autism. Ms. S. disagrees with that statement. It appears that there has been no diagnosis of autism. There is some suspicion he may have ADHD, but that, at worst, it is mild. I note that E. appears to be a very bright young boy. There is nothing in the evidence before me to indicate that he has any issues with his physical health.

[16]        With respect to the COVID-19 outbreak, I am cognizant of the Provincial Health Authority’s guidelines and, in my view, I am able to take judicial notice of those guidelines: N.J.B v. S.F., 2020 BCPC 53.

[17]        Ms. S. says E. does not want to see his father and he acts up after the Skype visits. However, she made no comments about the three days when E. was taken to Mr. M.’s brother’s home on March 6. 2020. There is no evidence that there is any reason for Ms. S.’s statement other than her own view of things.

[18]        I am not surprised that E. would behave differently after seeing his father on Skype, given the fact that he likely misses his father and is adjusting to living with unknown people in an unknown home. As E. is only [omitted for publication], it is not appropriate to consider his views, and I do not accept Ms. S.’s evidence of his views.

[19]        Mr. M. was the income earner in the family. Mr. M. says that he arrived home at approximately 4:30 p.m. each weekday and would play with E., have dinner together, go to the park after dinner, if weather permitted, and also play outside. They would go bike riding, and Mr. M. would engage in educational activities with E. He describes E. as a very bright young child.

[20]        Ms. S. testified that she was a stay at home mother to E. She disagrees with Mr. M. as to the extent of his time with E., but does not deny that he did those activities with E.

[21]        I find that Mr. M. was an involved father.

[22]        There is no reliable evidence that there has been family violence, other than the verbal argument on March 6, 2020. All families have disagreements, especially when they are in the process of separating. I do not find that family violence had a significant impact on E. and I note the Ministry has no protection concerns after interviewing E.

[23]        Both parents appear able to exercise their parenting responsibilities. I accept Ms. O’Keefe’s version of her conversations with Ms. S. in which she was told that Mr. M. had the ability to parent E. on his own.

[24]        Ms. S. says that she lives in a basement suite that she rents from a person with a shared laundry and kitchen area. She and E. share the bedroom, which has two beds. She does not work outside of the home.

[25]        Because of COVID-19, Ms. S. says she is regularly cleaning the suite and common areas to ensure their health. Her roommate “washes hands and changes clothes to be washed and showers to ensure all of our safety as well.” I note that she does not identify whether her roommate is a man or a woman, although she denies Mr. M.’s evidence that she is involved romantically with her roommate. She says that he is assuming that because he uses steroids and has insecurities.

[26]        Ms. S. did not provide any evidence as to whether her roommate or roommates work outside of the home. I suspect that they do.

[27]        Mr. M. continues to reside in the family home

[28]        He is a carpenter and operates his own business with some employees. He is currently working on a very large project and will have employment for the next 18 months. Because it is a large project, he is able to distance himself from workers he does not know, and he is not moving between building sites. His evidence is that there are hand-washing stations all over the worksite. He wears a face mask all day on the site. The other workers on the site are observing the COVID-19 protocols as well. Mr. M. is aware of workers being sent home for not following the protocols. No one can afford to have the site shut down.

[29]        Mr. M. says that, as a forming contractor, he is never required to work in close proximity to anyone else. He sanitizes his tools at the end of the day. He washes his hands and showers at the end of the day. As well, he washes his clothes right away and disinfects his lunch box.

[30]        Mr. M. rides to work with a co-worker, because Ms. S. has the family vehicle, and he is unable to register the vehicle he is in possession of due to difficulties in registering the vehicle in his name for insurance. He says he and his co-worker both wear masks when they are in his co-worker’s vehicle and they are careful to wipe down the interior of the vehicle each day.

[31]        Ms. S.’s position on parenting time is that Mr. M. smokes and uses marijuana on regular basis. She says that he cannot be wearing a mask, as he has stated under oath, because of his constant smoking. In her view, this places E. and her in jeopardy.

[32]        I accept Mr. M.’s evidence as to the actions he takes to avoid exposure to COVID-19. Ms. S. is simply speculating.

[33]        Ms. S. and Mr. M. both say that the Skype visits either did not occur or did not proceed on most of the days they were scheduled, despite my Order. Mr. M. says that Ms. S. did not permit them. She says:

[34]        Mr. M. says that he tried to have Ms. S. participate with him in mediation with the Family Justice Counsellors, but she refused. In her affidavit, Ms. S. does not mention any attempts to try mediation, and so I accept Mr. M.’s evidence with respect to Ms. S.’s refusal regarding my suggested mediation.

[35]        Ms. S. advised the Court that she now resides in the Abbotsford area, but has refused to give her address, despite my previous Order. She says that she does not want Mr. M. to know where she is because of his harassment.

[36]        With respect to the Easter weekend parenting time that Mr. M. was to have, Ms. S. refused to allow it, because she says Mr. M would be with his family and not exercising proper distancing. As well, the Order did not provide a location for pick up and drop off. It is clear that she was well aware of the Order and chose to disobey it.

[37]        Ms. S.’s apparent inability to comply with court Orders does affect her ability to carry out her parental responsibilities.

[38]        Mr. M.’s evidence is that he is able to adjust his work schedule so he can take E. from Thursday evening at 6:30 p.m. to Sunday evening at 6:30 p.m. If not that schedule, he suggests an alternating schedule, where he has E. from Friday at 6:30 p.m. until Sunday at 7:00 p.m. on the first week. On the next week, he would have E. from Thursday at 6:30 p.m. until Sunday at 7:00 p.m.

[39]        At this point, Mr. M. does not have access to a vehicle, so Ms. S. would have to be responsible for transporting E., especially since she objects to E. having contact with Mr. M.’s family. He suggests a pick up and drop off location at [omitted for publication] in front of the [omitted for publication]. He says that if he is personally unable to care for E. for any reason during his parenting time, he will let Ms. S. care for him.

[40]        Mr. M. would like a police enforcement clause. He wants Ms. S. to give him the address and proof of where E. is living. He notes that Abbotsford may be outside of the area restriction of the Lower Mainland. He also wants an order that Ms. S. is to report any information regarding exposure to COVID-19 and to advise him of the steps she has taken to register E. in kindergarten.

[41]        She does not agree with Mr. M.’s proposed parenting time schedule because she says that E.’s attitude and behaviour changes after he sees Mr. M. on Skype, such that he becomes defiant and uncooperative, refusing to talk with Mr. M. Also the 8:00 p.m. Skype calls interfere with his bedtime since they have moved. As a result, she believes that Mr. M.’s visits need to be supervised and should be only every other weekend.

[42]        Ms. S. points out that she has been the primary parent to E., as she was a stay at home mother and Mr. M. worked outside of the home. As a result, she has taken care of E. every day, and he has never been out of her care, but for three nights when Mr. M. took E. to his brother’s after the March 6 argument.

[43]        Finally, she expresses concern that Mr. M.’s family is not self-isolating, and would expose both E. and Ms. S. to COVID-19.

[44]        Taking into account all of the factors set out in s. 37 of the FLA, as well as my findings as to Ms. S.’s credibility and reliability, I find that it is in E.’s best interests that I make the following orders:

[45]        Counsel for Mr. M. is to draft Order and email it to the Registry. Under the Provincial Court (Family) Rules, L.O.S.’s signature is not required.