IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           By way of an Application for an Urgent Hearing and a Notice of Motion, the applicant mother seeks enforcement of an Order for parenting time. The Order she seeks to enforce was made very recently, on February 26, 2020, by consent. She also seeks additional relief, including drug testing of the father, and the more extraordinary remedy of a change of primary residence to her, in the event that the father has a positive drug test result.

[2]           The father opposes the relief sought by the mother, and in turn asks that the mother’s parenting time be suspended on an interim basis and be replaced with parenting times that occur by telephone or FaceTime/Skype.

[3]           The father recently began denying the mother’s parenting times. His justification for doing so is based on the changed landscape arising from the Covid-19 crisis and the health and safety issues arising from it. More specifically the father asserts that the mother is unlikely to be able to comply with social and physical distancing measures and other protocols currently recommended by public health authorities.

[4]           The child in issue is N. Jr, who was born on [omitted for publication].

[5]           The mother alleges that there has been a long pattern of the father and his parents, denying and limiting the mother’s parenting time. She says that she was the child’s primary caregiver for the first year of his life, until December 2018. She said that she and the father lived together at various times between the child’s birth and October 2018. They then separated and the mother cared for the child with the assistance of her parents, with whom she lived.

[6]           In January 2019, the child went into the care of the father, or according to the mother, into the care of the father’s parents. The mother says that during a visit between the paternal grandparents and the child, they left with the child, without permission, and have kept the child in their care since that time. The mother says that the paternal grandparents kept the child in their care without any reason and, between January 12, 2019 and December 16, 2019, would only provide her with very limited parenting time with the child.

[7]           The parties attended a Family Case Conference (“FCC”) on February 14, 2019, at which time they consented to an Order that the mother have supervised parenting times with the child three days per week between 7:00 AM and 6:00 PM. Visits were to be supervised by the maternal grandmother.

[8]           On June 26, 2019, a further Order was made by consent, which varied the parenting time of the mother such that it would occur at the offices of the Ministry for Children and Family Development (“MCFD”) or as agreed between the parties.

[9]           A further interim Order was made at an FCC on December 16, 2019, which provided that the mother have regular supervised parenting time on a graduating schedule, which culminated in her having the child each week on Sunday from 9:00 AM to 6:00 PM and Wednesday from 7:30 AM overnight to Thursday at 6:00 PM.

[10]        Following that Order, the mother began seeing the child two to three days per week for several hours each time, all of which was supervised by her brother H., and/or either of her parents.

[11]        Most recently, a further Order was made on February 26, 2020 at an FCC, which built on the overnight parenting time and set out a schedule as follows:

[12]        I note that while the clerk’s notes from the February 26, 2020 FCC do not specifically state that the mother’s parenting time is to continue to be supervised, it seems to be understood by the parties that supervision is to continue in accordance with the previous Order made on December 16, 2019.

[13]        Thereafter, the mother’s supervised parenting time continued in accordance with the February 26, 2020 Order.

[14]        On March 24, 2020, the father’s lawyer sent a letter to the mother’s lawyer stating that due to concerns related to Covid-19, the father was isolating N. Jr and not allowing him to leave the home, including attending day-care. She further advised that during this uncertain time, the mother would not be permitted to exercise her parenting time. She further asked which members or the mother’s family are continuing to work, and not practicing isolation, and where they work. No specific allegations were raised about the mother or members of her family not following Covid-19 protocols as recommended by public health officials.

[15]        The mother has also asserted that she believes that the child is not living with the father but in fact, is living with the paternal grandparents, who are not his guardians. She believes that the father is using drugs. I note that both of these allegations are longstanding concerns of the mother and not ones which have arisen since the recent Court Order.

[16]        The father says that any limits on the mother’s parenting times since at least January 2019 have been as a consequence of her mental health issues. He says that the child has been living with him and his parents since that time, following a report to the MCFD by the mother’s parents expressing concern about the mother’s ability to care for the child. In fact, on January 14, 2019, a Safety Plan with the MCFD was entered into by the father and his parents, by which they agreed to not permit the mother to have any unsupervised access to the child.

[17]        A subsequent MCFD Family Plan from February 2019 indicates that the MCFD had concerns about the mother in three areas: mental health, parenting skills, and substance abuse. Goals in those areas were identified and strategies were developed to address those issues. The mother signed that Family Plan confirming her intention to address the goals identified by the MCFD for her. A letter from the MCFD social worker dated December 9, 2019 indicates that the mother was continuing to work with the MCFD to address the concerns but that their file remained open to monitor her progress.

[18]        The father’s affidavit evidence includes a number of comments outlining concerns about the mother’s mental health. The father describes the mother’s behaviour at various times as being paranoid, delusional and hallucinating. At times in early 2019, he describes that the mother would go missing for several days at a time while she was using crystal meth and/or other street drugs. Furthermore he says that within the past year she has:

[19]        More recently, the father has alleged that the mother has sent a letter to the child’s day-care, stating that the letter was from the father, and indicating that the father had given up his rights to the child and no longer wanted to retain the child care benefits for him. The father suggests that this is a more recent example of the mother’s inability to exercise sound judgment, likely related to her mental health issues.

[20]        The father says that given the mother’s history of mental health challenges, which appear to result in her fabricating ideas and experiencing delusions, the present Covid-19 crisis is likely to impact her mental health further, and cause her to behave in a manner that will pose a risk to the child.

[21]        The father further states that a further reason to suspend the mother’s in person parenting time is the fact that there are seven people who live in the mother’s home, being the mother, her elderly parents, the mother’s brother and his child, the mother’s sister and her 17 year old son.

[22]        Finally, the father proposes that any parenting time that the mother loses as a result of any suspension which may occur would be compensated at some point down the road, when the Covid-19 restrictions no longer apply.

[23]        The issue to be determined is whether the Covid-19 crisis, and the public health advisories associated with the crisis, are a change of circumstances such as to justify suspending the mother’s parenting time as set out in the consent Order of February 26, 2020.

[24]        It is trite, but bears repeating, that every decision that a Court makes must be founded upon a consideration of the best interests of the child only. That principle is found in s. 37 of the Family Law Act.

[25]        The Family Law Act also includes a direction that an Order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being (s. 37(2)).

[26]        Determining an Order which is in the best interests of a child is rarely a straightforward task. It is perhaps an even more delicate task in the current era of Covid-19.

[27]        The father relies on some recommendations that have recently been drafted by Dr. Michael Elterman, to provide guidance to parents in the time of Covid-19. Although these are general recommendations, and are not in the nature of an expert report, I will note that Dr. Elterman is a psychologist with considerable expertise in child related matters and is well known to this Court.

[28]        Dr. Elterman describes a variety of common parenting decisions that may increase risks for both the child and the community, and should form part of decisions regarding parenting arrangements. They include:

[29]        In my view, these are all reasonable recommendations, and consistent with what I understand to be the recommendations of public health officials, at this time. Although public health guidelines are not technically before the Court, in my view, and particularly under the exigent and evolving circumstances that we all currently face, I am able to take judicial notice of those guidelines, which include social distancing, frequent washing of hands and avoiding non-essential travel.

[30]        There are a few written decisions that have emerged in Ontario that have begun to address the family issues arising in the context of Covid-19. In Le v. Norris 2020 ONSC 1932, the Court considered a case in which the mother was withholding parenting time for the father contrary to a Court Order due to her concerns about Covid-19 transmission. The Court ordered compliance with the parenting Order and in doing so said the following:

[31]        In Ribeiro v. Wright 2020 ONSC 1829, the Court said the following:

[32]        In the present case, I do not accept the mother’s submission that the present denial of the mother’s parenting time is another example of the father doing what he can to limit the mother’s parenting time. On the contrary, I find that whatever resistance the father has had in the past regarding the mother having parenting time has been well founded based on her mental health and substance abuse struggles. I note that his caution also appears to have been supported by the MCFD. I also note that the father has consented to the mother having an increasing amount of parenting time, albeit supervised, over the past year. That now includes regular overnight parenting.

[33]        However, the father is not able to point to any concrete concerns about the mother and her family’s lack of compliance with Covid-19 protocols on this application. His concern appears to be based on the mother’s historical, and likely present, challenges with her mental health which has sometimes manifested in paranoid or conspiratorial ideas. He believes that propensity is likely to be compounded by the prevalence of Covid-19 in the community.

[34]        Up until a week ago the father was satisfied that his concerns would be addressed by the mother’s parenting time being supervised by her parents and her brother. I note that the maternal grandmother is a retired nurse. The maternal grandfather is off work due to a workplace injury. All of the other members of the household are students and due to the closure of schools, are largely remaining at home. While this is a large number of people residing in this household, there is nothing to indicate that that alone, or the particular activities of the individuals creates an increased risk of infection for the child, or the community.

[35]        While the maternal grandparents may be at a greater risk of suffering serious medical issues if they contract Covid-19, I do not understand that by virtue of their age they are at any greater risk of contracting the virus, or infecting the child. The mother’s counsel has provided assurances that all members of the household are complying with public health authority guidelines and recommendations and she says that given the circumstances they are essentially on lockdown. I also do not believe that transportation between the two households will increase the risk of infections, provided proper protocols are adhered to.

[36]        While I accept that the mother’s variable mental health does give rise to a concern, that concern has been addressed by the fact that all of her parenting is supervised. I do not find that concerns in relation to the mother are any greater under Covid-19 than they were before Covid-19, based on recommendations that currently exist. As such, I order that the father comply with the Order of February 26, 2020.

[37]        I will not include a police enforcement clause in this Order as that is an extraordinary remedy limited to exceptional cases and which I do not expect will be necessary in this case. I expect that the father will abide by this Order, without the necessity of involving the police. However, in the event that he does not comply, the mother has liberty to apply for an Order for police enforcement.

[38]        I also find while the father has denied parenting time to the mother, in accordance with s. 62 of the Family Law Act, that denial was not wrongful. I consider that there was no bad faith on the part of the father and that in the unprecedented and evolving circumstances of the Covid-19 pandemic his actions were not unreasonable, albeit incorrect.

[39]        Finally, this decision is premised on the state of public health recommendations and advisories as I understand them to be today. The situation is fluid and changes to those recommendations, or a quarantine of any members of the either parent’s household, could result in a different outcome. I would hope that the parties are able to be open and transparent with one another regarding any developments in their respective households so that the health and well-being of the child, as well as the community at large, remain their priorities.

[40]        The mother’s application for an Order for drug testing of the father is dismissed, both on the basis that there is no urgency to such an application, and because there is a lack of evidentiary foundation for such an Order.

[41]        In summary: