J.R.K.P. v. L.A.S., 2020 BCPC 73

Citation: J.R.K.P. v. L.A.S. 2020 BCPC 73 Date: 20200420 File No: 17512 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.R.K.P. APPLICANT AND: L.A.S. RESPONDENT RULING OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Respondent: J. Chadola Place of Hearing: Abbotsford , B.C. Date of Hearing: April 20, 2020

Date of Judgment: April 20, 2020 [ 1 ] Counsel for the Respondent L.A.S. has brought an application for an urgent hearing under the Family Law Act, pursuant to this court’s NOTICE TO THE PROFESSION AND PUBLIC: COVID-19: SUSPENSION OF REGULAR COURT OPERATIONS dated April 14, 2020. Under that direction, only urgent Family Law Act matters as determined by a judge will be heard in a telephone hearing. These are defined to include:

a) Requests for urgent relief relating to the safety of a child or parent;

b) Requests to obtain or set aside protection orders, or urgent orders involving parenting time, contact with a child or communication between parties;

c) Urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to relocation, non-removal, wrongful removal or retention of a child;

d) Applications to suspend, change or cancel any order for imprisonment or committal pursuant to the Family Maintenance Enforcement Act ;

e) In a child protection case, all urgent matters, including applications for supervision orders and for extension of time, and any other urgent motions or hearings; and

f) Urgent cases where irreparable harm will occur if the application is not heard. [ 2 ] In this case, the Respondent (who brings this application) bases her claim for urgency on two grounds:

a) The Applicant’s refusal to return the child;

b) The Applicant lives in a home with his mother, who performs elder care in a care home. [ 3 ] On the first ground, the Respondent does not provide details of the alleged denial of parenting time. Her affidavit in support of the application simply reads, “The father is refusing to return the child”. No further details of this refusal are set out. This may constitute urgency under paragraph c) of this Court’s direction, as being a wrongful retention of the child. However, before an emergency hearing can be set, further details of the denial should be provided.

When was the Respondent entitled to pick up the child? How was the refusal to comply with the order for parenting communicated? Was any reason given for the refusal to comply with the order? [ 4 ] On the second ground, the mere possibility that a person in someone’s home may have been in contact with someone carrying the virus is not a valid reason for denial of parenting time. If this was the case, those health care workers directly dealing with this pandemic would not be having contact with their own children.

In order for Covid-19 concerns to prevent contact between a parent and child, there must be a more substantive reason for denial of contact, supported by some form of objective medical evidence, rather than the lay opinion of one of the parties themselves. [ 5 ] The parties are now operating under a court order which provides for the child to be in each party’s care on alternating weeks. The Application filed on behalf of the Respondent alleges that the Applicant is refusing to permit the Respondent to have her parenting time “because of Covid-19”.

If this is the true and the Applicant is refusing to follow the court order solely because of a general conclusion and nothing more, then he is wrong in doing so. [ 6 ] To be fair to the Applicant, he has not had a chance to respond to the Respondent’s allegations of wrongful withholding and there may be some specific reason for the withholding. Generally speaking however, parents who use the current pandemic as a tactic to deny parenting time to the other parent, without any other further justification for doing so, are not acting in the child’s best interest.

Parents who attempt to create fear in the mind of a child by suggesting that the child is at risk by being in the care of the other parent, without any objective justification for doing so are also not acting in the child’s best interests. Such parents who take this approach risk jeopardizing their own position for maintaining whatever parental responsibilities they enjoy. [ 7 ] As previously stated, no conclusions have been drawn with respect to these parties, given that so far only one party has been heard from.

Some parents might take the approach attributed to the Applicant in this case out of a genuine belief that they are acting out of love, and in the best interests of a child; or they may be doing so out of spite and for personal advantage and not in the best interests of the child. In the former case, unless the parent has some specific reason for withholding the child, on valid medical grounds (as opposed to the parent’s subjective opinion), then the parent should comply with the existing court order.

In the latter case, the parent should not only comply with the order, but also risks losing parental responsibilities as a consequence for non-compliance. [ 8 ] I propose to have these parties proceed as follows: 1. A copy of this ruling should be provided to the Applicant by the Respondent. 2. If the Applicant is in fact denying parenting time, and is doing so because of his own general opinion and not for any other valid reason that is supported by objective evidence, he should immediately comply with the existing order. 3.

If the Applicant has a valid reason for withholding the child, he should inform the Respondent of that reason, along with any supporting evidence for that conclusion, including any medical report or other independently generated document (such as a direction from a Ministry of Children and Family Development social worker).

4. If after providing a copy of this ruling to the Applicant, he continues to withhold the child from the Respondent, she may resubmit her application for an urgent hearing. 5.

The Respondent’s application to have the child reside with her full-time because the Applicant’s mother works as a caregiver to seniors is not justification for a change to the order, in the absence of more specific evidence of harm to the child in the Applicant’s home. [ 9 ] For the foregoing reasons, the application for an urgent hearing is denied, but the Respondent may reapply if the Applicant continues to deny her parenting time after receiving a copy of this ruling. _______________________________ The Honourable Judge K. D. Skilnick Provincial Court of British Columbia