V.C.S. v. T.S., 2020 BCPC 60

Citation: V.C.S. v. T.S. 2020 BCPC 60 Date: 20200401 File No: 1445590 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: V.C.S. APPLICANT AND: T.S. RESPONDENT ORAL DECISION OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Applicant: G. Whidden Counsel for the Respondent: C. Song Place of Hearing: Prince George , B.C. Date of Hearing: April 1, 2020 Date of Judgment: April 1, 2020

[ 1 ] THE COURT: All right, so here are my reasons on the application. This is an application by V.C.S. for the return of the children, J.K.S. age 15 and A.W.S. age 12, from their mother's residence in -- is she in Chilliwack or Pitt Meadows? [ 2 ] MS. SONG: In Pitt Meadows. [ 3 ] THE COURT: In Pitt Meadows, okay. [ 4 ] MS. SONG: Yes. [ 5 ] THE COURT: In Pitt Meadows to his residence in Prince George. The children primarily reside with V.C.S. in Prince George and the respondent, T.S., exercises parenting time with the children in Pitt Meadows on school holidays.

V.C.S. took the children to the Lower Mainland on March 15th for T.S. to exercise spring break parenting time. However, at the end of that parenting time, T.S. refused to return the children. [ 6 ] T.S. refuses to return the children on the basis that due to the COVID-19 pandemic it is not safe for the children to travel back to Prince George. She says it is in the best interests of the children that they remain with her until the pandemic abates. Neither child is alleged to be infected nor is either parent. [ 7 ] The parties have three children together.

The oldest, age 16, did not visit the respondent on spring break and remained with V.C.S. in Prince George. [ 8 ] The parties separated in 2014, following which T.S. moved to Vancouver. All three children continued to remain in the primary care of V.C.S. in Prince George after separation, with T.S. exercising parenting time during Christmas break, spring break, and summer breaks when school was not in session. [ 9 ] V.C.S. alleges there has been a history of T.S. refusing to return the children to his care at the end of her parenting time.

In 2014, T.S. refused to return the children at the end of the summer holidays, prompting V.C.S. to make an application for their return. T.S. subsequently returned the two boys, but would not return the youngest, A.W.S. After a hearing before Judge Weatherly on September 4, 2014, T.S. was ordered to return A.W.S. [ 10 ] On October 9, 2014, Judge Arthur-Leung ordered the preparation of a s. 211 report and ordered periods of specified parenting time for T.S.

Implicit in the order was that the children were primarily residing with V.C.S., with T.S. exercising specified parenting time in the Lower Mainland, facilitated by an exchange of the children in 100 Mile House. [ 11 ] A full s. 211 report was prepared on January 22, 2015. It was the opinion of the author that it was in the children's best interests to remain in Prince George with their father when school was in session and spend time with their mother on the school breaks. On February 13, 2015, Judge Gray ordered T.S. to pay child support to V.C.S.

Again implicit in this order was the children were in his primary care. [ 12 ] In August 2019, at the conclusion of T.S.’s summer parenting time, she refused to return J.K.S. to V.C.S.’s care, prompting V.C.S. to make an application for his return. On August 29, 2019, Judge Mengering ordered J.K.S. be returned to V.C.S., that he reside in Prince George pending further order of the court, and that he primarily reside with V.C.S. until further order of the court or by agreement of the parties.

Judge Mengering further ordered an RCMP enforcement clause. [ 13 ] On September 19, 2019, the parties agreed by consent to the preparation of a s. 211 views of the child report concerning J.K.S. This report was completed November 19, 2019. J.K.S. expressed to the author of the report that he felt secure and settled in his lifestyle in Prince George, where he was doing well in school, had good friends, and enjoyed playing hockey. He had a good relationship with his sister and an improving relationship with his older brother.

He had conflicted feelings about whether he wanted to live in Prince George or Vancouver and expressed anxiety at the prospect of starting at a new school, making new friends, and joining a new hockey club in Vancouver. By the end of the second interview with the author, J.K.S. was firm he wanted to continue to live in Prince George for now. [ 14 ] There is no application before me by T.S. to change the parenting time orders currently in place. This is an application by V.C.S. to effectively enforce the existing orders.

I cannot change the existing parenting arrangements in the absence of any application to do so. I can only determine whether or not it is in the children's best interests to enforce those existing orders. [ 15 ] T.S. argues that due to the COVID-19 pandemic it is unsafe for the children to be transported from Pitt Meadows to Prince George, a drive of around eight to nine hours. She and her counsel made references to news reports about the potential dangers of COVID-19 and mysteries surrounding its transmission.

I expressed that given this was an urgent matter and the application was brought on short notice, I was open to considering any relevant directives or information published by B.C. or Canadian health authorities, but could not take judicial notice of the risks of transmission of this disease based on anecdotal news reports of individual cases. [ 16 ] T.S. provided the court with a number of materials printed from the B.C. Centre for Disease Control and Ontario. She also provided a couple of news reports about fatal cases of COVID-19 involving children.

Those news reports did not identify whether the children transmitted the disease during a long car ride or use of a public washroom and are therefore of limited assistance. She argues that asymptomatic people could be using the public washrooms. The potential transmission of the virus by asymptomatic people is a possibility in any public setting, including sidewalks and grocery stores, and is not particular to washrooms. Despite that risk, I note the health authorities have not sequestered everyone to their houses and banned all public outings.

Rather, safety protocols have been implemented to mitigate the risk of transmission. [ 17 ] The proposed method of transportation is that the children would be in the private motor vehicle of their parents from their mother's residence in Pitt Meadows to their father's residence in Prince George, with the children being exchanged between the parents part way. There will be no exposure to other persons during this period of transport. T.S. argues that returning the children to Prince

George is nonetheless unsafe because they would need to eat and use the washroom during their eight-hour journey, which would expose them to the risk of transmission of the virus. [ 18 ] I find the issue of food consumption is readily dealt with by T.S. packing meals for the children to eat on the road, which would eliminate the need for them to handle packaging associated with take-out food. I question whether such precaution is even necessary, given our public health authorities have deemed it safe for Canadians to attend drive-throughs and consume take-out food in the course of this pandemic.

I do not find the children's need to eat on the journey a compelling basis to justify the temporary change of residence of the children. [ 19 ] With respect to the children's need to use washrooms, there are numerous rest stops and gas stations on the highway between the Lower Mainland and Prince George. The public health authorities have not considered such amenities to be of sufficient risk of viral transmission to warrant their closure.

Indeed, numerous truckers and delivery persons continue to use these facilities during the course of this pandemic to keep the vital supply chains open. [ 20 ] I stood down this hearing to provide T.S. an opportunity to find any directives, opinions, or other documents from our public health agencies discouraging the use of public washrooms in the course of this pandemic. I have been provided with no such evidence, other than there is a risk of contracting the disease through "fecal-oral transmission". This is not unique to COVID-19.

There are risks of contracting even deadlier diseases through fecal-oral transmission, which is generally why people wash their hands after using a washroom. [ 21 ] It is evident that our health authorities deem it safe for Canadians to continue to enter grocery stores and gas stations which house public washrooms, provided they practice preventative measures such as social distancing and washing their hands.

I have been provided no evidence as to why it is particularly unsafe for the children to use public washrooms in these facilities when it is not unsafe for other Canadians to do so. [ 22 ] Again, it would seem the issue of washroom use is easily resolved by a number of measures. Social distancing from others in the building by keeping six feet apart is the most obvious. To avoid entry into gas stations, the parties could use roadside rest stops, which eliminates all potential contact with other persons in an enclosed store environment.

The children could be given disposable gloves or towelettes to use as makeshift gloves when making contact with handles, lids, and paper rolls in the course of using the washrooms. They can lay down a toilet paper lid before they sit.

They can wash their hands thoroughly upon completion. [ 23 ] In short, with the smallest precautionary measures, I can see no reason why the children cannot use a washroom safely during the eight- to nine-hour drive to Prince George. [ 24 ] The materials filed by T.S. in fact suggest a person sharing a residence with someone infected with COVID-19, if they do not have the option of using another washroom, can share the common washroom with the infected person by taking certain precautions. [ 25 ] I am not satisfied on the evidence that there is a measurably increased risk of the children contracting COVID-19 by using a public washroom or rest stop during a car trip. [ 26 ] I note that V.C.S. drove the children down to T.S. on March 15, 2020, in the midst of this pandemic.

She expressed no concern about the children being put at risk when the children were being transported to the Lower Mainland so as to facilitate her parenting time. [ 27 ] T.S. argues that I should find it is unsafe for the children to travel because public health authorities have discouraged travel. Public health authorities have discouraged all non-essential travel. People required to travel for work still travel. People who are trying to get home from their non-resident location still travel. There are no travel bans on intra-provincial travel.

In my view, transporting children to their primary place of residence is, by definition, essential travel. Health authorities have ordered persons to remain home as much as possible. For the last six years, the children's residence in Prince George has been home. They should go home. [ 28 ] In Le v. Norris , 2020 ONSC 1932 , the children's mother refused to comply with an existing order for parenting time on the basis of the COVID-19 outbreak as the order in force at that time contemplated the father having parenting time twice per week at his residence.

The court enforced the order, finding that concerns about the COVID-19 health crisis can be addressed through responsible adherence to the existing court order and each party following the precautionary measures urged by Canadian and provincial health authorities. I find the same reasoning applicable in this case. [ 29 ] In making any order, I must consider the best interests of the children as described in the Family Law Act .

In this case, the history of the children's care for the last six years has been they primarily reside with their father in Prince George, B.C., where they have friends, school, and activities. The children's older brother lives with his father in Prince George. There has been no change in circumstances since the August 2019 order was made, other than the COVID-19 outbreak. While school is currently not in session, it is soon expected to resume in a non-classroom format.

I am not satisfied that this outbreak has made it dangerous or unsafe for the children to be driven by their parents to their primary home residence of Prince George. [ 30 ] In terms of the health of the children, there is no evidence they are safer in the Lower Mainland than Prince George. To the contrary, the Lower Mainland has a significantly higher number of reported cases of COVID-19 than Northern B.C. [ 31 ] I find it is in the best interests of the children they be returned to V.C.S.

I am concerned that this is the third time T.S. has attempted to change parenting arrangements by refusing to return the children after parenting time, rather than making the appropriate applications to the court to change those arrangements. I find T.S. has wrongfully withheld the children. [ 32 ] I order that the children, J.K.S. born [omitted for publication], and A.W.S. born [omitted for publication], be immediately returned to the care of V.C.S. in Prince George, B.C. [ 33 ] I will also make an RCMP enforcement clause.

[ 34 ] With respect to how the children -- when and how they will be returned, what submissions would the parties like to make in that regard? Tomorrow? [DISCUSSIONS FROM 3:45:09 P.M.

TO 3:46:25 P.M.] [ 35 ] THE COURT: All right, so the parties will exchange the -- sorry, T.S. shall deliver the children to V.C.S. by meeting at the Dairy Queen parking lot in Cache Creek, B.C., by no later than 2:00 p.m., March 2, 2020. [ 36 ] THE CLERK: April. [ 37 ] THE COURT: April -- oh, it is April, thank you, Madam Clerk, April 2, 2020. [ 38 ] Okay, N7 -- one second -- okay, N7: Upon being -- I am going to modify this, Madam Clerk -- upon being satisfied that a person has been wrongfully denied parenting time or contact with a child by the child's guardian, this court orders under s. 231(4) of the Family Law Act -- Madam Clerk, can you just add that if T.S. fails to deliver the children as contemplated in this order, a police officer shall apprehend the children -- and I will give you that recital, Madam Clerk -- J.K.S. born [omitted for publication], and A.W.S. born [omitted for publication], and take the children to V.C.S. [ 39 ] Is there any further orders or relief to address at this time? [ 40 ] MR.

WHIDDEN: Two points. One is V.C.S. has applied under s. 230 of the Family Law Act for a fine for the breach of the order, and two, just because we were in court -- scheduled to be in court March, I believe, 17th for an order for substitutional service, I ask that an order be made that we can serve either T.S. by email with his application to vary the order, or to Ms. Song, if she is now acting for T.S. beyond this hearing today, so we can avoid having to come to court in what will be probably June or July. [ 41 ] THE COURT: All right, so Mr.

Whidden, the fine application, because I would not consider it urgent, I am prepared to adjourn that so it can be heard once everything is back up and running in regular court. [ 42 ] MR. WHIDDEN: Sure. [ 43 ] THE COURT: So V.C.S.’s application for a penalty is adjourned to the judicial case manager to fix a further date for hearing on a non-COVID-19 urgent basis. I do not know when they are scheduling them. You understand what I mean? [ 44 ] MR. WHIDDEN: Yes. [ 45 ] THE COURT: All right, so -- and then, Ms.

Song, where can there be an address for service for future applications and for any notices of hearing? [ 46 ] MS. SONG: You mean my service address? [ 47 ] THE COURT: I need one for T.S. [ 48 ] MS. SONG: For the future service address, you can use my service address. [ 49 ] THE COURT: Okay, and that is -- all right, so Madam Clerk, V.C.S. may serve T.S. with further applications or materials by service on her counsel, Cindy Song. Do I have that right? Is it S-o-n-g? [ 50 ] MS. SONG: Yes. [ 51 ] THE COURT: All right, Ms.

Song, and so I am not going to specify the method, you can just use -- the Law Society Rules are there, Mr. Whidden. [ 52 ] MR. WHIDDEN: Thank you. [ 53 ] THE COURT: Anything further from your perspective, Ms. Song, T.S., about the exchange that is being proposed? [ 54 ] MS. SONG: So far I have nothing further. [ 55 ] THE COURT: All right. Okay. Well, that order is made. Mr. Whidden, you can draft the order, but it is valid upon pronouncement, all right, and thank you, that is all. [ 56 ] MR. WHIDDEN: Thank you. (REASONS CONCLUDED)