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S.R. v. M.G., 2020 BCPC 57 (CanLII)

Date:
2020-04-07
File number:
F-2031672
Citation:
S.R. v. M.G., 2020 BCPC 57 (CanLII), <https://canlii.ca/t/j6chc>, retrieved on 2024-03-29

Citation:

S.R. v. M.G.

 

2020 BCPC 57

Date:

20200407

File No:

F-2031672

Registry:

Vancouver

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

 

 

 

 

BETWEEN:

S.R.

APPLICANT

 

AND:

M.G.

RESPONDENT

 

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE P. BOND



 

Appearing on their own behalf:

S.R., by phone

Appearing on their own behalf:

M.G., by phone

Place of Hearing:

Vancouver, B.C.

Date of Hearing:

April 6, 2020

Date of Judgment:

April 7, 2020


[1]           S.R. applies for an order returning the parties eight year old child, L.G., to her care. M.G. responds that as S.R. is a health care worker and treated a patient with COVID-19 on March 21, 2020, she should self-isolate for two weeks before seeing her son. He proposes however, that he will arrange to have his partner bring the child to S.R.’s apartment and she can visit him from her deck on the second floor of her apartment building.

[2]           It is very clear from the materials filed that both parties dearly love L.G. While they separated in 2014, they have had no need to apply for the court’s assistance or direction in parenting him since their separation. They arranged to share parenting time amicably between them, with L.G. residing with his mother during the weekdays and with his father every Friday at 5:30 p.m. until Sunday at 6:00 p.m. M.G. has been paying child support to S.R.

[3]           M.G. runs a demolition company. On March 17, 2020, he sent an email to his employees asking them to stay at home if they believe they have come into contact with the virus or feel ill. The memo indicates that the company continues to work on its projects.

[4]           On March 23, 2020, he sent a further email to his employees stating that they have people “going out into the field to continue working on a daily basis”. He lists a number of specific steps the company has taken to limit the risk, including

a)            Ordering cleaners and disinfectant for each truck unit;

b)            Providing each truck a box of gloves;

c)            Limiting the amount of people entering the office and increasing distancing for those there; and

d)            Ensuring those that are ill do not attend work.

[5]           The memo recognizes the need for companies to continue to provide services to the community during this extraordinary time. It also recognizes that the company fulfils a vital role in providing services and supporting its employees. M.G. later stated that all workers have agreed only to attend work and home, with one person in their home getting supplies while wearing protective gear.

[6]           M.G. continues to attend his office to work Monday to Friday, each week. He says that he is the only person physically in the office and that all others are working remotely. I note that this contradicts the information he sent out to his employees on March 23, 2020, but recognize that procedures have been changing in all offices over the last month.

[7]           M.G. resides with his partner, S., who is currently working remotely from home.

[8]           S.R. works as a Licenced Practical Nurse at [omitted for publication] General Hospital on a casual basis. She typically works weekends and is at home with L.G. during her parenting time.

[9]           This is not a situation in which the parties have not cooperated in communicating the steps they are taking to ensure the safety of their son. On the contrary, they have been forthright with one another and shared their jointly held concerns for the safety and well-being of their son and older family members from the beginning of this crisis.

[10]        On March 12, 2020, S.R. cancelled a trip to Mexico for L.G., herself, and extended family members during the spring break due to her concern for their health and safety. The parties had a number of discussions via text as to what they could arrange between themselves to ensure their son had a special spring break. They agreed he would be with his Dad from March 13 – 20, and then return to S.R.’s care until school started up again and they would return to their regular schedule.

[11]        On March 19, 2020, they had a further text discussion about the potential risk S.R. posed because of her work. She was particularly concerned about spreading the virus to M.G.’s parents who are vulnerable to the more serious effects of the virus. She was appreciative of M.G. and his partner keeping L.G. safe for an extended period.

[12]        Since March 23, 2020, S.R. has been requesting that L.G. return to her care. M.G. has refused to return L.G., but has offered to have L.G. brought to her condominium, so she could see him from her balcony. He has also offered to have L.G. telephone her. M.G. indicated that he has been putting an N95 mask on L.G. when he goes outside.

[13]        S.R. advised M.G. that at work she follows every precaution recommended to the nurses, and then some. She says she wears hospital issued scrubs, leaves her shoes and clothing at work, wipes down her bag and showers as soon as she gets home, using bleach to clean door handles. She was able to assure him that all precautions are in place at her work and she is not “flagged” for being at risk at this time. In essence, she says that the concerns she expressed on March 19th, have been addressed and she is more confident of her ability to ensure that she will not spread the virus.

[14]        By March 28, 2020, the parties seemed to be on the same page that L.G. would return to spend some time with his mom. However, on the 29th, S.R. requested a couple hours to do more research to feel 100 percent positive that she was making the best decision, as it was weighing on her so heavily. This was enough to convince M.G. that he was not comfortable with L.G. returning to his mother’s care, and he returned to his proposal for distanced contact.

[15]        The parties appeared before the court on April 6, 2020 by telephone, each representing themselves. At the hearing, M.G. acknowledged that he does not consider S.R. to be currently at risk of infecting L.G., as he understands her last exposure through work was on March 21st. Since April 4, 2020, which was two days before, he has felt that it has been safe. Nonetheless, he did not arrange for L.G. to see his mother because he wanted the court to put in place a schedule first, and he knew this hearing would proceed on Monday, April 6, 2020.

[16]        Given M.G.’s conclusion that there is no risk at this time, I directed that he return the child to his mother within two hours, and he assured the court he would do so.

[17]        I reserved my decision overnight.

[18]        It has already been said that we are in unchartered territory when it comes to decisions about parenting time. The COVID-19 pandemic has affected our social community at its very roots, and it is clear it will continue to do so for a considerable period. In the meantime, however, life will go on.

[19]        There is very little case law on the considerations that should apply in assessing whether a parenting time regime should continue in circumstances of those service providers who continue to work with the public during the pandemic. These include everyone from clerks at the grocery store and pharmacy, to medical professionals working in clinics and hospitals, police officers, social workers, fire officials, paramedics, etc.

[20]        On the other hand, now that the virus is spreading in the community, we are exposing ourselves to the risk of contracting the virus by accessing any services, whatsoever. This includes receiving the newspaper or mail, purchasing groceries, attending at a bank, or going for a walk.

[21]        As S.R. points out, she is working in an environment with a known risk, as the medical staff assume that they are constantly at risk of exposure. By contrast, in the community an individual who appears to be well could be spreading the virus to others through touching surfaces or sneezing or coughing at the grocery store, or jogging on the street close to other pedestrians. It has been said that even those members of the public who are using masks are not protected because they are not following the necessarily procedures to ensure their safety in removing and storing their masks.

[22]        I find a constellation of factors to consider, in assessing what is in a child’s best interests. In this situation, the following factors are relevant:

a)            Whether the child is at an elevated risk of suffering the more severe consequences of the virus;

b)            Whether either party, or those in their household are at an elevated risk of suffering the more severe consequences of the virus;

c)            Each party’s exposure to the risk of contracting the virus;

d)            Steps taken by each party to mitigate the risk of exposure;

e)            All of the relevant factors listed under s. 37 of the Family Law Act, including:

a.            The child’s health and emotional well-being;

b.            The child’s views, where appropriate;

c.            The child’s relationship with each parent;

d.            The history of the child’s care;

e.            The child’s need for stability, given his age and stage of development;

f.            Each parent’s ability to exercise his or her parental responsibilities;

g.            The ability of each party to cooperate in parenting the child; and

f)            In the larger context, society’s need to maintain and access resources in the community, including health care and other ventures that provide services and income for families in a safe manner over an extended period of time.

[23]        I find that in this case, these parents are both functioning at a high level. They are both intelligent and educated, and motivated by their reasonably held beliefs as to what is in the child’s best interests. They have done their best to attempt to resolve this dispute on their own before resorting to the court.

[24]        Reviewing the factors I have set out above, and the evidence put before me by the parties, I find the following:

1.            That L.G. is not at an elevated risk of suffering the more severe consequences of this virus.

2.            There are no individuals living in either party’s household at risk of suffering the more severe consequences of this virus.

3.            Both parties are at risk of exposure to the virus. S.R. by virtue of her work at [omitted for publication] General Hospital and by exposure in the community. M.G. in a more limited manner through his work and in the community.

4.            Both parties have taken significant steps to mitigate the risk of exposure. S.R. says she has taken every precaution to protect herself and L.G. from contracting the virus. Likewise, M.G. has taken specific steps to ensure that his staff and his family are not exposed.

5.            With respect to the s. 37 factors:

a.            As indicated above, the child’s health is good. I have no indication that he is not managing well emotionally at this time, although he would, no doubt benefit from contact with his mother, provided it was safe.

b.            I do not have the child’s specific views on the matter as he is only eight years old.

c.            L.G. has had the benefit of both his parents being involved in his life and appears to have a solid relationship with each parent.

d.            Until recently, he has had a stable and consistent schedule of care and it is clear his parents have worked together to ensure his needs are met.

e.            L.G. is at a young age in which maintaining close contact with each parent is important for his healthy development.

f.            Both parents are fully capable of exercising their parental responsibilities in L.G.’s best interest.

g.            Each parent is able to cooperate in co-parenting L.G.

6.            Finally, I find that there is no question that S.R. is fulfilling a fundamentally important role as a health care worker at this critical time. The community expresses the importance of that role every evening at 7:00 pm as people cheer and shout their support. Individuals, companies and whole communities have stood together to provide food, shelter, protective equipment and other support for our health care workers, knowing the sacrifices they are making and risks they are taking for our benefit. Apart from the risk of exposure to the virus, some of those workers are choosing not to return home to their families when they live with particularly vulnerable partners, children and parents.

M.G. is also continuing to work. While his work is not as crucial to society in general, he continues to employ a number of people who can fulfil their work obligations in a safe manner that accords with the directions of the Provincial Health Officer.

[25]        For both parties there is some risk to their family members when they return home. Clearly, S.R. is taking every conceivable step to mitigate that risk and has personally agonized over the possibility that she could infect another family member. M.G. has also agonized over both the risk to L.G. and the fact that his position on this issue would limit L.G.’s contact with his mother. He fully appreciates how painful this must be for her and for L.G.

[26]        On the other hand, I have to consider that L.G. no doubt benefits from direct contact with his mother. She has been his primary caregiver and he is still only eight years old. Because of the disruption to L.G.’s schedule, it will be particularly important to maintain for him the primary supports he enjoyed in the past.

[27]        In all of these circumstances, after balancing the factors above, I find that it is appropriate that S.R. continue to have parenting time with L.G.. While there is some risk that she could contract the virus, I find that she has mitigated that risk by abiding by the precautions for nurses “and then some”, as she says. I should say as well that my decision is in part a result of my confidence that both parties will do the right thing to protect their son as this situation continues to change.

[28]        I will note that in reaching this decision, I have not been impacted by S.R.’s comment that “her work is her work, but her son is her life, and if it came to a choice, she would chose her son”. While that would be a significant loss to the health care system, it does not influence my decision in this matter. For instance, if I were to find that L.G. was particularly vulnerable to suffer severe consequences from contracting the virus, I would not be inclined to expose him to any risk, regardless of S.R.’s stated position.

[29]        S.R. proposes that she have L.G. with her when she is not working. She suggests that the parties reduce the risk by implementing a new rotation in which she would have L.G. for seven days and he would be with his father for four days, instead of the current rotation of 5 days with S.R., and two days with M.G. S.R. would continue to work on the four days when L.G. would be with his father.

[30]        She also seeks some extra parenting time over the next two weeks to make up for the several weeks in which she has not seen L.G.

[31]        I am prepared to institute on an interim basis a new regime as proposed by S.R. She will have L.G. for the next two weeks, starting April 6, 2020. During that time, she will not work. Thereafter, the parties will exchange L.G. as follows:

                     M.G. will have parenting time with L.G. for four days.

                     S.R. will have parenting time with L.G. for seven days.

                     During S.R.’s parenting time, she will not work.

                     The parties will have such further and other parenting time as agreed between them from time to time.

                     The parties will arrange the times for pick up and drop off between themselves.

                     If either party or someone in their household is “flagged” as being at risk of contracting the virus, they will inform the other party promptly and take appropriate steps to limit L.G.’s exposure to the virus.

                     They will continue to discuss and assess their risk factors as they have done in the past, and I trust that if it should become apparent that there is an elevation of the risk to L.G., they will take the appropriate measures to protect him.

[32]        The court will prepare the order and it will be provided to the parties April 7, 2020.

 

 

________________________________

The Honourable Judge P. Bond

The Provincial Court of British Columbia