IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This matter comes on before me by way of an Application for Urgent Hearing brought by A.L. (the “Father”). On April 9, 2020 I heard from the parties by telephone and determined that the matter qualified as urgent. Accordingly the matter was set for a hearing by telephone on April 15, 2020, with the parties to file and exchange the materials on which they intended to rely by the morning of the hearing. Upon hearing from the parties and reviewing their materials I reserved my decision until today.

[2]           The application of the Father seeks to enforce the Final Order of July 29, 2019 by which the parties equally share parenting time of their son, O.L., born on [omitted for publication]. That order provides that parenting time is shared, with L.R. (the “Mother”) having O.L. on Mondays and Tuesdays, the Father having Wednesdays and Thursdays, and the parties alternating weekends, being Friday to Sunday. The Father says, and it is not disputed by the Mother, that the parties recently agreed to temporarily alter those arrangements to alternating weeks, due to risks of Covid-19 exposure and the fact that O.L. is currently not attending school.

[3]           The Father also seeks police enforcement of the Final Order, compensatory parenting time and penalties against the Mother.

[4]           The Father’s application arises out of the Mother’s refusal to return O.L. to the Father for his parenting time under the Final Order or their recent agreement. The Mother says that she has withheld O.L. from the Father because of his refusal to provide assurances that he will administer asthma medication to O.L. while he is in the Father’s care. The Mother says that this has become a pressing issue in the current era in which the Covid-19 virus is prevalent in the community. While the Father agrees that he is prepared to administer O.L.’s asthma inhaler in the event that he becomes ill with a respiratory illness, he does not accept that O.L. in fact has asthma and is unwilling to administer inhalers to prevent the onset of respiratory illness.

[5]           Since this application largely turns on the issue of O.L.’s health and whether he requires ongoing treatment for asthma it is important to consider his medical history in some detail.

[6]           When O.L. was four months old the Mother identified to O.L.’s family doctor, Dr. Tran that he was experiencing minor wheezing in his breathing. As a result he was referred for a chest X-ray to explore the issue further.

[7]           At his six month medical check-up wheezing was again noted and a referral was made to a paediatrician. Shortly thereafter at a doctor’s visit on March 3, 2015 when O.L. appeared to have a viral infection, Dr. Tran prescribed a trial of a Ventolin inhaler. Dr. Tran’s medical note includes a reference to “consider reactive airways – mother has asthma”. Reactive airway disease is a term that is sometimes used to describe symptoms where asthma is suspected but cannot be diagnosed. I understand that it is not possible to formally diagnose asthma in very young children and is difficult to do so for children under the age of five.

[8]           In April 2015, when O.L. was seven months old, he was seen by a paediatrician, Dr. Kalkov, as a result of the Mother’s concerns about his persistent wheezing. Dr. Kalkov noted that the chest X-ray that had been done when he was five months old was normal. He stated that the wheezing episodes did not look like episodes of asthma and that he did not observe any wheezing when O.L. was seen by him. He nonetheless referred O.L. to the Lung Clinic at BC Children’s Hospital to further assess him.

[9]           Dr. Tran left his practice in 2016 and the practice was taken over by Dr. Matic, who then became O.L.’s family doctor. In November 2016 the Mother brought O.L. to see Dr. Matic with complaints of him being sick on and off for the previous three weeks, including fevers, coughing and wheezing. Dr. Matic noted his wheezing in her observations and her clinical notes appear to question if he might have asthma. She prescribed Flovent and Ventolin inhalers and discussed the signs and symptoms of poorly controlled asthma and when it may be appropriate to bring him to the emergency ward. Subsequently, on a visit for an ear infection in February 2017, Dr. Matic advised the Mother to continue administering both Flovent and Ventolin.

[10]        The parties separated on February 2, 2017, when O.L. was 2.5 years old.

[11]        The Mother says that prior to their separation she observed the Father administer inhalers to O.L. several times. The Father denies that he ever did so.

[12]        Following their separation the Mother says that the Father refused to administer O.L.’s inhaler medication as prescribed. The Mother refers to the many email and text exchanges between them regarding this issue. The Mother says that she notified the Father of all doctor’s appointments for O.L. as well as the results regarding what she calls O.L.’s asthma management and medication.

[13]        On November 27, 2017 O.L. was seen by Dr. Matic. Following that visit Dr. Matic prepared a letter in which she stated:

[14]        Due in part to the Mother’s concerns about the Father refusing to administer O.L.’s inhalers, she reported the issue to the Ministry for Children and Family Development (“MCFD”).

[15]        In 2018 and 2019 O.L. was referred to another paediatrician, Dr. Deevska, who in turn referred O.L. to the Eagle Ridge Respiratory Clinic. He has been seen at that clinic approximately once every six months. A letter from Dr. Deevska dated March 13, 2020 acknowledges that O.L. has a diagnosis of asthma.

[16]        The Mother says that during the period of 2018 to 2020 the Father has consistently refused to administer inhalers to O.L. during his parenting times, against medical advice. She says that during this period O.L. had what she refers to as rolling colds and flu for the majority of the year and particularly during the fall and winter months. She said that O.L. would get marginally better on her parenting days when he received the inhalers but became marginally worse on the Father’s parenting days when he was not taking the inhalers. She said that the Respiratory Clinic advised that this was to be expected with inconsistent use of inhalers. She said she was urged by O.L.’s treating clinicians to encourage the Father to administer the inhalers on his parenting days but that he refused to do so.

[17]        The Mother says that during an appointment with the Respiratory Clinic on February 25, 2020 O.L. told the paediatrician, Dr. Mike Smith, that while at his Father’s home he is not allowed to have his puffers because he doesn’t have asthma. Dr. Smith then urged the Mother to encourage the Father to administer the inhalers during his parenting times.

[18]        Prior to the Covid-19 pandemic, the Mother was following the court ordered parenting time schedule, despite her concerns about the management of O.L.’s respiratory issues at the Father’s home. However, during her week of parenting during the first week of spring break, as the pandemic continued to evolve, she became increasingly apprehensive about the Father’s refusal to administer O.L.’s inhalers. Covid-19 is primarily a respiratory illness and represents a heightened risk for those with asthma.

[19]        The Mother was advised by Dr. Matic that it was extremely important for O.L. to receive his prescribed medication daily, and especially during the Covid-19 pandemic. The Mother also spoke with a MCFD social worker about her concerns and was told that she had the right and obligation to do what was necessary to ensure O.L.’s health and safety.

[20]        On March 20, 2020, while O.L. was still in the care of the Mother, the parties began discussions about altering the parenting schedule to reflect the reality of Covid-19 and the fact that O.L. would be out of school indefinitely. They agreed that an alternating week schedule was appropriate. During those same email exchanges the Mother asked the Father if he would be administering O.L.’s asthma management plan while in his care, and especially during the Covid-19 pandemic. The Father would not respond to questions regarding asthma management and the Mother stated that if the Father would show her that he had the inhalers she would do the exchange with him on March 23 for his week to begin. He refused to do so and she refused to exchange O.L. Accordingly, O.L. continues to be in the Mother’s care.

[21]        On March 31, 2020 O.L. had a further appointment with Dr. Smith regarding management of his asthma. Dr. Smith stressed the importance of administering asthma medications daily. He provided a consult letter to Dr. Matic the same date in which he stated in part:

[22]        The same day Dr. Smith wrote a letter to Melissa Sze, the MCFD social worker for this family in which he states in part:

[23]        Dr. Smith is a Consultant Paediatrician with interest in Respiratory and Allergic disease. The Father says that while he was aware that O.L. was having regular visits with the Respiratory Clinic, he was not aware of these letters from Dr. Smith until the morning of this hearing. He nonetheless remains adamant that there is no evidence to support Dr. Smith’s diagnosis of asthma and that he intends to follow up with Dr. Smith directly.

[24]        The Mother proposed to the Father that he have Facetime visits with O.L. until this matter can be resolved but he has declined to have any on the basis that he is entitled to have parenting time in accordance with the Final Order and subsequent agreement.

[25]        The Father does not believe that there is any evidence to support a diagnosis of asthma for O.L. and has put considerable effort into disproving such a diagnosis. He refers to the paediatric consultation report from Dr. Kalkov when O.L. was seven months old in which he stated that O.L.’s wheezing episodes do not look like episodes of asthma.

[26]        The Father also reviewed the medical charts from the Foremed Clinic which has been O.L.’s primary care clinic since his birth. Although those records were not in evidence on this hearing, the Father provided his own written summary of those records which he says do not reveal any concerns of asthma by the various physicians until Dr. Matic made such a diagnosis in November 2016. He says that in making that diagnosis Dr. Matic ignored O.L.’s history and ignored any input from him or his parents.

[27]        The Father states that he obtained a second medical opinion regarding O.L. having asthma in October 2018 and was told by that doctor that O.L. did not have signs of asthma and that he should not follow the Mother’s asthma plan as it was “excessive”. He says that this doctor advised him to only administer an inhaler if O.L. showed signs of respiratory distress and to then take him to the hospital for “clinical evidence”. The Father did not have a letter or medical record from this visit. Nor was he able to even remember the name of the doctor that provided this second opinion.

[28]        The Father also relies on an emergency record from Royal Columbian Hospital from November 18, 2017 in which the Mother complains of O.L. having red lips and cheeks which she felt could be indicative of an allergic reaction. The Father notes that there was no evidence of respiratory problems on that visit. I do note however, that the record indicates that the Mother did advise the attending doctor or nurse that O.L. had a history of asthma.

[29]        The Father has also provided a Diagnostic Study Note report from Dr. Randy Chung regarding O.L.’s visit to Eagle Ridge Hospital on February 25, 2020. Dr. Chung appears to be a Respirologist. The summary in that brief report includes the following statement:

[30]        The Father says that this is the most recent evaluation conducted regarding O.L.’s respiratory health.

[31]        The Father has also provided a letter from Erin Myles, Team Leader with the MCFD dated March 14, 2020. In that letter Ms. Myles states that an investigation was conducted following a report expressing concern about the Father neglecting to provide O.L. with appropriate medical care for O.L.’s asthma. Following an investigation there were found to be no child protection concerns as the Father had made it clear that if he saw O.L. in any respiratory distress he would either provide him with his inhaler or take him to a doctor or to the hospital.

[32]        Finally, the Father asserts that administering asthma medications which are unnecessary may be harmful to him and he attaches a number of online medical articles which suggest that children using asthma medication may present with symptoms of depression, hyperactivity, ADHD and oppositional defiant disorder.

[33]        Section 37 of the Family Law Act requires that every decision that a Court makes must be premised on a consideration of the best interests of the child only.

[34]        The Family Law Act further provides 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)).

[35]        On this application I am asked by the Father to enforce his parenting time without regard to the dispute between the parties as to whether O.L. has asthma and how it is to be treated. He says that it is not up to the Mother to determine what steps he must take during his parenting time. He further says that he is taking all appropriate steps to ensure O.L.’s health and safety, in light of what he believes to be an uncertain diagnosis of asthma.

[36]        In my view it is not only appropriate but in fact is necessary for me to consider the issues around O.L.’s asthma in contemplating what order to make. That falls squarely within the category of O.L.’s physical safety and well-being, which must be protected, to the greatest extent possible.

[37]        I find the evidence that O.L. has asthma to be far more persuasive than the evidence to the contrary provided by the Father. The two letters from Dr. Smith dated March 31, 2020 state in no uncertain terms that O.L. has asthma and should receive maintenance Flovent daily. Dr. Deevska confirmed the same diagnosis by way of her letter of March 13, 2020. Both are paediatricians, with Dr. Smith having particular expertise in respiratory disease and working at the Respiratory Clinic.

[38]        Much of the material relied upon by the Father to undermine a diagnosis of asthma is either very dated or vague and subject to interpretation.

[39]        The report from Dr. Kalkov was the result of one visit when O.L. was just seven months old. O.L. is now over five years old.

[40]        The Father’s comments on the clinical records of the Foremed Clinic are not backed up by the actual records so it is impossible for me to place any weight on his comments. While the Diagnostic Study Note from Dr. Chung is very recent, the information that it offers is not particularly helpful for a layperson. It states that the “overall pattern of the testing is not typical for asthma”, but I do not read that as a conclusion that O.L. does not have asthma. Indeed such a conclusion is contrary to the clearly expressed opinion of Dr. Smith, with whom O.L. appears to have an ongoing clinical relationship.

[41]        The Father may have legitimate concerns about the process leading to a diagnosis of asthma. However, without an opinion to the contrary, I am unable to conclude that O.L. does not have asthma.

[42]        Furthermore, asthma is a serious, and in some cases potentially life threatening condition. In my view, any disputes about the appropriate medical treatment protocol for asthma must be guided by the medical professionals involved, and erring on the side of caution is in order. I find that to be particularly so in the current era of Covid-19 which represents a pervasive threat to all members of the community, but especially those that have underlying health issues. I understand that asthma is one of those particularly vulnerable underlying health issues given that Covid-19 is a respiratory illness.

[43]        It is difficult for me to place any weight on the medical articles provided by the Father outlining the potential side effects of asthma medications. However, I would not be surprised if there were some potential side effects as there are with most medications. I note however, that the current asthma treatment plan is not an indefinite one. In fact Dr. Smith expressly states that if O.L. continues to do well with no prolonged coughing, normal exercise tolerance and no emergency visits for asthma, his medication will slowly be reduced and stopped over the next year.

[44]        Finally, while the circumstances that have given risen to this application are unfortunate, under the exceptional circumstances created by the Covid-19 pandemic, I am satisfied that the denial of the Father’s parenting time was justified and accordingly was not wrongful in accordance with s. 61 and 62 of the Family Law Act. I also find that, other than the Father receiving an additional two days of parenting time this coming week, he is not entitled to further compensatory parenting time. I also do not find it to be appropriate to order police enforcement as I am confident that the Mother will abide by the parenting order that I am making.

[45]        Accordingly the order that I shall make is as follows: