K.J.B. v. M.M.B., 2020 BCPC 109

Citation: K.J.B. v. M.M.B. 2020 BCPC 109 Date: 20200526 File No: 15726 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.J.B. APPLICANT AND: M.M.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN

Appearing in person: K.B., by telephone Appearing in person: M.B., by telephone Place of Hearing: Abbotsford , B.C., by teleconference Date of Hearing: May 19, 26, 2020 Date of Judgment: May 26, 2020 INTRODUCTION [ 1 ] The father, K.B., has brought an urgent motion to enforce his parenting time with his teenaged son and daughter. Mr.

B.’s parenting time includes alternating weekends and Wednesday evenings, but he has not seen his children in person since the weekend of March 13, 2020, other than a brief socially distant meeting with his son on April 1, 2020. [ 2 ] The mother, M.B., has withheld the father’s parenting time because she is now caring for her father, Mr. L., who had a stem cell transplant and is in a severe immunocompromised state. In light of the COVID-19 concerns, Ms. B. and the doctors say that Mr. L. and those in the mother’s household must remain isolated from unnecessary exposure to others. Ms.

B. seeks an order suspending the father’s parenting time. Mr. B. was not consulted in advance about Mr. L.’s care arrangements. [ 3 ] Pursuant to the Notice to the Profession and Public 19, this matter has already been ruled urgent. The parties made submissions before me by telephone based upon affidavits affirmed during the hearing. In family matters, I prefer to see the parties eye to eye, but that is simply not possible at this time. [ 4 ] The Court is between the proverbial rock and a hard place.

If I adopt the mother’s position, she will be able to continue to care for her father with some sense of security, but at the very same time, I will be substantially curtailing the father’s parenting time with the children. There are no right and wrong answers here, just perhaps better and worse ones. As always, I am governed only by the best interests of the children as defined under s.37 of the Family Law Act. BACKGROUND [ 5 ] K.B. and M.B. are the parents of two children, S. who is almost 15 and L. who is nearing 13. By a written agreement filed in this Court on October 3, 2013, Mr.

B. has parenting time with the children on alternating weekends and shared time in the summer. He also has parenting time every Wednesday evening by verbal agreement. [ 6 ] On March 20, 2020, the parties discussed how to handle parenting time during the evolving COVID-19 pandemic. Mr. B., his current wife and his stepson were all still working outside the home. Mr. B. worked in a lumberyard, his spouse worked at a garage door company, and his stepson worked with the [omitted for publication]. All these employers are following COVID-19 protocols. Nevertheless, Mr.

B. then did agree to temporarily suspend the arrangement of the children going between 2 homes. There was great uncertainty then about the virus and how visits should happen. [ 7 ] Mr. B. did maintain phone calls, texts and video chats with S., but L. had “blocked” him. She may have been upset that he had grounded her for not participating in school. Mr. B. feels that Ms. B. is enabling L. and is not supporting his attempts to visit her. Ms. B. says that Mr. B. is ignoring L.’s mental health issues.

This girl has gone through chemotherapy herself in the past, and she may have mild depression. [ 8 ] On April 1, 2020, Mr. B. did go for a walk with S. near the mother’s home, and social distancing was maintained. Ms. B. was not contacted about this visit in advance, but on the day of the visit, she and Mr. B. ultimately agreed to a visit in the park with social distancing. [ 9 ] It was only in April of 2020 when Mr. B. learned that Ms. B. had moved her father into her home after he had received a bone marrow transplant. Mr. B. was not previously consulted about Ms. B. becoming her father’s temporary caregiver.

He was concerned that Ms. B. was actually putting the children at risk, as her father’s hospital could be a hot spot for COVID-19 infection. In any event, Mr. B. was not previously told that Ms. B. had any intention of denying him his visits due to her father’s situation. [ 10 ] Ms. B. explained that her father’s stem cell transplant was in the works for a year or so. The plan was for him to be discharged from Vancouver General Hospital and to go to a long-term care home in Vancouver, as he needed constant care and to be close to the hospital. Mr. L. actually lived in [omitted for publication] not far from Ms. B.

Due to the pandemic, the medical team in consultation with the mother’s family decided not to place her father in a care home and to instead place him in her home in [omitted for publication]. Ms. B. had experience with cancer patient protocols, and the children were not attending school. Ms. B.’s brother and his spouse could not take on this responsibility. [ 11 ] After reviewing all the evidence, I am satisfied that Ms. B. did not consult Mr. B. about her plan to care for her father in her home until the plan had already been carried out.

She did feel there were ways for the children to still see their father without going to his home, and she realized the situation “sucked”. [ 12 ] Dr. Nantel is Mr. L.’s physician, and he wrote a letter dated May 4, 2020. Mr. L. is under his care for a bone marrow malignancy. Mr. L. received an allogenic stem cell transplant on March 11, 2020, and as a result, he is severely immunocompromised. The severe immunocompromised state is expected to persist for at least 9 to 12 months. [ 13 ] Dr. Nantel says it is essential for Mr.

L. and his immediate family contacts to remain isolated from unnecessary exposure to others. He states that it would be medically inappropriate for the grandchildren to travel between homes as this would increase the risk of transmission of viral infections such as COVID-19. Of course, Dr. Nantel is advising what is best for his patient, whereas I must decide what is best for the children. [ 14 ] Ms. B. lives in a 3-level townhouse and her father stays in her bedroom. She sleeps on an air mattress in S.’s room. As the

family has been through cancer a few times, there were strict handwashing rules in place even prior to the pandemic. Ms. B. does all the shopping and she wears a N95 mask and gloves. She has visited friends outside, and one of them briefly came into her house to use the bathroom. [ 15 ] The children engage in online schooling and they are not in physical contact with friends, although I understand S. sees a few neighbours with social distancing. [ 16 ] Mr. B. says that, according to S., S. rarely showers and he spends most of his time in his mother’s home gaming. When the children are at Mr.

B.’s home, they are loved, nurtured and cared for. [ 17 ] Mr. B. does not have outside visitors in his home. The occupants of his household minimize their outings to essentials only, and they have mandatory handwashing and sanitation of touch points. In his materials, he has attached all the procedures and safety protocols for his employer, his wife’s employer and his stepson’s employer. There have not been any COVID-19 cases in any of these work establishments. [ 18 ] Mr. B. asserts that S. has been very upset about the loss of a relationship with him.

S. was excited to see in person visitation start again on May 8, 2020, but Ms. B. has disallowed any such visits. Mr. B. believes that Ms. B. has historically dictated when and how he is to see his own children. He also feels she alienates the children from him. S. has been made to feel guilty that if he came to his father’s house and then got his grandfather sick, it would be his fault. Ms. B. does not encourage his relationship with L. [ 19 ] Ms. B. states that she does encourage a healthy relationship between Mr. B. and the children, and she has “backed up” Mr.

B. about past parenting issues. [ 20 ] To invigorate a stronger relationship between Mr. B. and the children, I made an interim order that Mr. B. have messenger app, video or phone visits with the children every day. The mother was to ensure that L. unblocks her father. Two 6 hour visits were to occur last weekend. [ 21 ] I am advised that the interim visits with Mr. B. did not proceed quite as planned. L. did unblock her father, but she sent him a harsh text message, and he responded by texting that he would love to know what she thought he had done wrong.

However, L. did visit with her father for 2 hours on Saturday and by the end of that time, they were chatting and joking with each other. L. did not visit with her father on Sunday as she was tired, and her mother reports that the prior visit was awkward. Mr. B. feels L. has no rules at her mother’s home, whereas Ms. B. believes Mr. B. does not understand L.’s situation or her mental health. S. had a very good time with his father both days. [ 22 ] Interestingly, when returning to Ms. B.’s home, Mr. B. saw Ms. B.’s father outside with a group of 4 to 5 people. Ms.

B. explained that her father was wearing a mask and he was more than 6 feet from anyone. THE DAUGHTER’S SITUATION [ 23 ] L.’s refusal to visit with her father or to “unblock” his calls is not by itself an impediment to restoring visits. It is not the role of courts to micromanage parenting. The parenting of a nearly thirteen year-old girl can be challenging at the best of times. [ 24 ] I am sure Mr. B. appreciates whether or not his treatment of his daughter was too harsh, and the two of them need to express their feelings to each other. What is clear is that if Mr.

B. were seeing his daughter more regularly, I think this impasse would have resolved itself. ENFORCEMENT OR SUSPENSION OF FATHER’S PARENTING TIME [ 25 ] When considering the issue of the father’s parenting time, I am governed only by the best interests of the children as defined in s.37 of the Family Law Act. [ 26 ] With the evolving COVID-19 pandemic, a certain amount of jurisprudence has developed about parenting arrangements in these tumultuous times. In Ribeiro v.

Wright , 202 ONSC 1829, an Ontario Court ruled that there is a presumption that an existing court order reflects a determination that meaningful contact with both parents is in the best interests of a child (see paragraph 7). In most situations, there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure all COVID-19 precautions are adhered to (paragraph 11). [ 27 ] Of course, the facts here are unique. We are dealing with a very vulnerable grandfather who now lives in the mother’s home. In Blythe v.

Blythe, 2020 ONSC 2871 , a mother and her children resided in her elderly parents’ home. The father was a bus driver with regular public contact, and the maternal grandparents told the mother that she and the children would have to move out if the children had regular contact with the father. The Court made an interim order allowing the father outdoor visits with masks. The best interests of the children included protecting the health of the grandparents. [ 28 ] The Blythe case can be distinguished from the present case, because Ms.

B. decided to move her father into her home with the children without consulting Mr. B. I do agree that the welfare of the grandfather here is relevant to the best interests test, but it must be weighed against the need for meaningful visits with the father. [ 29 ] There are no easy solutions here. The mother’s solution is to offer the father phone and video visits, with some socially distant visits in person outside. Although I commend the mother for taking on the care of her vulnerable father, she did not discuss her decision with Mr.

B. and her decision has huge ramifications for the children and their dad. [ 30 ] Taking into account all of the above, I have decided that Mr. B.’s parenting time should be restored on a gradual basis in the next few weeks. My decision is based on the following factors:

1. The agreement for alternating weekends and Wednesday nights has been in place since 2013, and has served the best interests of S. and L. S. still has a strong desire to see his father, and L. needs in person time with her dad to mend fences. I am concerned that the father’s role has diminished as a result of these recent events. 2. With my order, the mother will have some time to explore other options for her vulnerable father, such as care homes, in-home aides at the father’s residence, and help from friends and family. I am not pretending this will be quick or easy.

The mother could even consider the option of the children living at Mr. B.’s home for an interim period, if need be. 3. In these times of the COVID-19 pandemic, there will always be risks. These risks exist for children let alone an immunocompromised grandfather. Our province is now in the second stage of the COVID-19 start-up and the risks are being managed. Even before then, Ms. B. was grocery shopping and had some other outside contact while caring for her vulnerable father. I note that Mr.

L. will be in an immune compromised state for possibly one year, and the children cannot be expected to be on high alert for that long. School in September is likely, and they need to be engaged with summer activities and friends long before then. I also believe Mr. B. is taking all the necessary COVID-19 precautions in his household, as are his family’s employers. 4. Again, Mr. B. never agreed to a long-term suspension of his parenting time, and Ms. B. made the arrangements with her father without consulting a guardian of the children.

ORDER [ 31 ] Upon the Court being advised that the name and birthdate for each child is as follows: [ 32 ] S.B.B., born [omitted for publication], and L.S.B., born [omitted for publication]; [ 33 ] K.J.B.’s parenting time with the children as set out in the Agreement filed October 3, 2013, together with his visits Wednesday evenings from 3:00 pm until 7:30 pm, shall be enforced as of June 19, 2020; [ 34 ] Prior to June 19, 2020, K.J.B. will have parenting time with the children to include:

a) messenger app, video or phone visits every second day. M.M.B. will ensure that L. will unblock her father on her device, and M.M.B. will make best efforts to have L. communicate with her father;

b) on June 6 and 7, 2020, visits between noon and 8 pm will occur in the community. [ 35 ] Both parties shall follow the COVID-19 Orders, Notices and Guidance for the Province of British Columbia which are applicable to their circumstances; [ 36 ] K.J.B. and M.M.B. will agree on make-up time for the father for visits he missed following March 15, 2020. In the event they cannot agree on the make-up time within 30 days following this order, either party is at liberty to set a 30 minute hearing before Judge G.J. Brown to decide this issue.

The hearing may be by telephone. [ 37 ] In the event M.M.B. wrongfully denies K.J.B. his parenting time, he may apply before Judge G.J. Brown on 2 days notice for police enforcement and/or a fine. The hearing may be by telephone. ____________________________________ The Honourable Judge G.J.Brown Provincial Court of British Columbia