IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On March 26, 2020, the Director filed an application to cancel an access order that had been made on January 30, 2020 by consent. In the access order, the father, J.W., was to have access to K.W., who is [omitted for publication], from Friday after school until Saturday morning, every week or as otherwise agreed to between Mr. W. and the Director. Mr. W. was to arrange the transportation to and from the visits, and Mr. W. says that the access was to increase as it went along. As long as the access was going well it was to increase over the next three or four weeks.

[2]           The affidavit from Tricia Kaethler, the social worker for K., states that on March 16, 2020, in consultation with the program director and acting executive director, all in-person access was temporarily suspended by the Ministry due to the COVID-19 pandemic. In-person access was suspended as it contradicted the orders of social distancing made by the Provincial Health Officer. The decision affected all in-person access with children who are in the care of the Director.

[3]           Accordingly, Mr. W.’s last access visit was on March 13, over to the 14, 2020 and Ms. K.’s last visit was on March 15, 2020. Since mid-March, the Director has provided parenting time over electronic means such as Skype. Ms. K. is not opposed to the suspension of access and takes no position on the Director's application. She has, however, filed a letter in support of Mr. W.’s access.

[4]           K. herself is Métis through her mother's side of the family. The Métis Commission of BC is involved and has signed a written consent to suspending Mr. W.’s in-person access. Mr. W is opposed to the suspension and says that the access with him can take place safely.

[5]           This matter first came before me on April 29, 2020 and I adjourned it over to today's date so I could receive evidence specific to K.'s situation. In particular, I wanted evidence as to whether Mr. W.'s sister could provide transportation and what precautions the foster parents and Mr. W. were taking to avoid contracting COVID-19.

[6]           I am going to give a little bit of background. While Mr. W. has had a troubled background, the Ministry has stated that the only reason they are asking for the access to be suspended is because of the concerns they have regarding COVID-19 and, more particularly, the recommendations from the Ministry of Health and the Provincial Health Officer. While there were certain requirements set out by the Director for Mr. W. to complete before the access was to increase and those have not been done, that is actually not the issue in this application. I accept the parties' position that Mr. W.'s access was going well but I am going to give just a brief background on the history of Mr. W.'s relationship with K. because that affects her best interests.

[7]           K. was removed from Ms. K.'s care, not Mr. W.’s care, on January 23, 2018. At the time of the removal, Mr. W. was incarcerated. He apparently had not participated consistently in K.'s care because of his on and off incarceration. In October or November 2019, Mr. W. was released from custody and he began to engage with the Director on a consistent basis. At first he had supervised access with K., but by January 2020 he was having the overnight access set out in the order. He was consistent with that access and there are no concerns with his access visits. I have read the text messages between Mr. W. and K. It appears that she enjoys her interactions with him and she is forming a closer attachment with him. However, this application is not an application for increased access, it is an application to maintain the access at the level it was, or it is defending, really, against the Director's application.

[8]           The issues regarding COVID have to do with several factors; first is K.'s health concerns. K. has been diagnosed with asthma and requires an inhaler from time to time. She also requires adenoid surgery because her adenoids affect her breathing. Because of the nature of the COVID-19 illness, the Director says that that places K. at an increased risk of having severe symptoms should she contract the disease. I was not presented with any evidence that a child with asthma is more likely to suffer the severe symptoms of COVID-19.

[9]           Secondly, Mr. W.’s partner's child has recently had a kidney transplant and is on immune suppressants. Being on immune suppressants places that child at an increased risk for severe symptoms related to viral infections according to the Ministry of Health. Mr. W.’s partner and Mr. W. are taking great care to ensure that that child is not exposed to COVID-19 and I understand that they are following the suggested precautions meticulously as set out in his most recent affidavit. He says his house is clean and safe and neither he nor his partner are working outside of the home at this point. I accept that they are doing everything they can to ensure the safety of Mr. W.’s partner's child.

[10]        The third issue is transportation to and from the visits. The Director says that Mr. W. engages a variety of people to get K. to his house for access visits. One of those is his sister, Ms. W., but she had to stop being able to provide transportation because she did not have car insurance starting in March. Thereafter, other friends of Mr. W. also began to provide transportation. Ms. W. is now able to provide transportation again but says she requires funding for gas to be able to do so. Ms. W. is practising social distancing. She has a daughter who works outside of the home in an office where she does not have physical contact with the general public and Ms. W. drives her daughter to and from work. It appears that that is the only weak link in the chain.

[11]        Mr. W. also suggested friends Ms. N.M. and Mr. N.M. Ms. N.M. is able to provide the transportation for K. provided she passes certain checks that the Director requires. Ms. N.M. has five children in her care, one of which is medically fragile, and Mr. N.M. works as a recycling truck driver and as such is an essential service provider.

[12]        Mr. W. provided the name of his partner's father as a possible person to drive but I have not been told much about him.

[13]        Reviewing the information with respect to Ms. W., Mr. W.’s sister, she seems to be a viable person to be able to provide transportation to and from the home. It does not appear that there would be a great risk associated with her providing transportation.

[14]        Fourthly, K.'s foster parents are a concern. They are 58 and 62 years of age. I would say they are on the very low end of the age range that appears to be affected more severely by COVID-19 and that it would be more so if they had chronic illnesses such as diabetes but there is no evidence that they have any chronic illnesses. They do, however, have a mother who resides with them and would be in the age category where COVID-19 causes the most deaths or complications.

[15]        As well, K.’s foster parents have ensured that no one attends at their home, including their own grandchildren. They have other foster children but those children are not having in-person visits with their parents at this time. Mr. W. has indicated that Ms. K. was told by K. that there are people coming and going from the home. There is nothing before me to say whether there is or there is not and I am assuming that the foster parents are also living life safely.

[16]        The foster parents have stated to the Director that they would no longer be willing to care for K. if in-person visits were to resume. The Director says that if K. had to change homes they would be unlikely to find her a family care home because of the concerns of COVID-19. K. would then likely have to reside in a group home or emergency resource. Mr. W. offers that he would be able to care for K. should the foster parents decide not to care for her. Unfortunately, at this point his suggestion is not realistic and that would be a matter for another trial date.

[17]        Finally, I have to look at K.'s point of view. K. told her guardianship social worker that she did not want to have access with her parents at this time because of the risk of COVID-19. She said she did not want to make others at her foster home sick. She said that she was very happy in her current foster home as she feels loved there and she has been there almost two years.

[18]        Looking at the facts before me, I start by saying that each case regarding access and parenting time is to be looked at on a case-by-case basis and not as a blanket policy. In cases regarding the Family Law Act, the assumption that the courts are making is that parenting time will continue as set out in the orders that were existing before COVID-19 and I refer to Ribeiro v. Wright, 2020 ONSC 1829 and the decision of Judge McQuillan in J.B. v. S.F., 2020 BCPC 53.

[19]        I see no reason why a parent's access to a child in the Director's care, particularly where there is a consent order for specified access to that parent, should be treated any differently than a parent's court-ordered parenting time under the Family Law Act. In S.R. v. M.G., 2020 BCPC 57 at para. 22, Judge Bond sets out the factors she considered in assessing a child's best interests when determining whether parenting time should proceed when the mother was a health care worker. I note that the child's best interests under s. 4 of the CFCSA are somewhat different, but they are very close to those set out by Judge Bond which are:

[20]        In this case, Mr. W.’s partner's child is at an elevated risk of suffering the more severe symptoms of COVID-19. The foster parents' elderly mother is as well. It is not clear that K. is, but she may be when she is suffering from asthma and perhaps enlarged adenoids. While the two households do not appear to be at an elevated risk of exposure to the virus, the transportation issue creates a weak link. In my view, only Ms. W. would be a suitable person to provide transportation given the possible exposure to the virus in Ms. N.M.’s household and the fact that she has one medically fragile child in her care.

[21]        K. herself is of the view that in-person access should not continue during the pandemic as she is concerned about the foster home residents. She does not want to make them sick. If something were to happen where COVID-19 were to be transmitted to someone in the foster home or someone in Mr. W.’s home it would have a great impact on K.’s wellbeing.

[22]        Finally, while Mr. W.’s relationship with K. appears to be heading in the right direction, the relationship has not been a long, continuous relationship. Her relationship with her foster parents appears to be strong and she feels loved living there. If the foster parents do decide not to provide foster care to K. because of the in-person access then it is not in her best interests to be placed in a group home. The need for stability would not be met if such a change in placement were to occur.

[23]        While transportation maybe arranged to avoid the possible transfer of COVID-19 between the houses, I must consider the overwhelming consequences that could occur if COVID-19 does transfer. I must also consider the consequences of the foster parents refusing to take K. any longer and her attachment to the foster parents.

[24]        In considering all of those factors, I reluctantly find that I must cancel the in‑person access order that was made on January 30, 2020 on a temporary basis until the COVID restrictions have either been lifted or other arrangements can be made. In the meantime, the Ministry is to provide Skype access to Mr. W. for K.

[25]        Those are my reasons, and I do mean it is reluctantly because I think this file is going in the right direction and it is such a shame that the COVID crisis occurred just when it did for Mr. W.’s sake, but that is my decision.