A British Columbia Supreme Court judge says the provincial public health ordinance on COVID-19 is “fraught with contradiction and ambiguity” over a dispute between ex-spouses over child custody.
Justice Nigel Kent says public health directives aimed at reducing the spread of COVID-19 are not clear and give “very limited express direction” to families in responsibility for shared parenting.
In his Dec. 22 ruling, Kent ruled in favor of the father, who continued to have parental responsibility after the mother withheld regular parental leave with the children because of public health regulations and concerns about his new relationship.
She believed that the time the father spends with his new partner is against instructions and “poses an intolerable risk to the children’s health,” the verdict said.
“It is not surprising that reasonable people, in certain circumstances, can reasonably disagree on their interpretation and application,” writes Kent in the ruling.
The confusion was “graphically demonstrated” when Prime Minister John Horgan, citing the advice of Minister of Health Adrian Dix, announced his intention to spend Christmas Day with his son and daughter-in-law. Horgan “was forced to change his plans when it was warned that such a gathering was indeed a violation,” writes Kent.
After their breakup in 2019, the father became polyamorous and saw a woman after meeting her and her husband through a support group.
The new partner spends a lot of time and has sexual relations with both men. The new relationship has caused some concerns for the mother, who is concerned about introducing her children to both the new partner and the concept of polyamory, it said.
“This emergency was exacerbated by the COVID-19 pandemic and, most recently, by the issuance of several (public health orders) in the province, which significantly reduced social engagement,” writes Kent.
The father says he has a loving relationship with his new partner and that none of the members of the relationship, including the husband, are with anyone else. They also don’t plan on introducing new partners while the health restrictions are in place, the ruling said.
The father “pretty much” says the information posted on the provincial health officer website is not clear about how restrictions apply to a co-parent whose children only live with one parent half the time, Kent writes.
The father interprets the restrictions in such a way that a co-parent in his situation can accept his new partner in his “core bubble”.
The judge notes that the restrictions have been changed, repealed and replaced over time.
“The messages that accompany these commands, and indeed the language of those commands themselves, are fraught with inconsistencies and ambiguities,” writes Kent.
On November 13, the provincial health officer imposed restrictions on “being outside or inside a person who does not live with them in a private residence or holiday home,” despite the fact that a person lives alone , May host one or two people with whom the person interacts regularly.
On December 9th and 15th, Dr. Bonnie Henry some of the terms and conditions for meetings and events. Among the definitions, she said that “vacation rental” means a house, apartment, condominium, or other type of residential accommodation that is not the resident’s primary residence.
However, some languages in the order are left undefined, including what is meant by gatherings, someone living alone, and regular interaction.
There is also potential ambiguity regarding people who use two or more apartments from time to time, the judge says.
“Despite their obvious potential application to parents with children, these ordinances provide very limited express guidance to family units and parenting regimes in all of their various forms,” says Kent.
“In this case, it is controversial whether a parent who has two young children is qualified as a person who lives alone, whether in general or for the period in which he is not raising the children, and is therefore entitled to socialize with two other people with whom he / she “interacts regularly”, ”he says.
Another question is whether another person can move into the parents’ household for the duration of the public health regime and thus become a “resident”.
Upon reviewing the case, Kent said he found that the father’s residence outside of Vancouver is being defined as the new partner’s “vacation home” since she lives there when she is away from home. She is therefore a “resident” of the father’s house to interpret the commands.
There is also no evidence that the father or his new partner is behaving inconsiderately, the judge says.
Amy Smart, the Canadian press
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