COVID-19 rules 'fraught' with ambiguity: judge

A British Columbia Supreme Court judge says the province's public health orders on COVID-19 are "fraught with inconsistency and ambiguity" in ruling on a dispute between former spouses on the custody of their children.

Justice Nigel Kent says public health orders designed to reduce the spread of COVID-19 aren't clear and "provide very limited express direction" to families that are navigating co-parenting responsibilities.

In his judgment dated Dec. 22, Kent rules in favour of the father continuing to have shared parental responsibility after the mother withheld his regular parenting time with the children over the public health orders and her concerns about his new relationship.

She believed that the time the father spends with his new partner breaches the orders and "poses an intolerable risk to the health of the children," the judgment says.

"It is not surprising that reasonable people can reasonably disagree about their interpretation and application in any given circumstance," Kent writes in the decision.

The confusion was "graphically demonstrated," when Premier John Horgan, relying on advice from Health Minister Adrian Dix, announced his intention to spend Christmas Day with his son and daughter-in-law. Horgan "was obliged to change his plans when it was pointed out to him that such a gathering was actually a breach," Kent writes.

Following their separation in 2019, the father became polyamorous and began seeing a woman after meeting her and her husband through a support group, the decision says.

The new partner spends time and has sexual relations with both men. The new relationship has caused some distress for the mother, who is concerned about both introducing their children to the new partner and to the concept of polyamory, it says.

"This distress has been heightened by the COVID-19 pandemic and, most recently, the issuance of several (public health orders) in the province significantly restraining social engagement," Kent writes.

The father says he is in a loving relationship with his new partner and none of those in the relationship, including the husband, are dating anyone else. They also do not plan on introducing new partners while the health restrictions are in place, the judgment says.

The father "quite accurately" says the information published on the provincial health officer's website is not clear on how restrictions apply to a co-parent whose kids only live with a parent half the time, Kent writes.

The father interprets the restrictions to mean a co-parent in his situation is permitted to include his new partner in his "core bubble."

The judge notes that the restrictions have been amended, repealed and replaced over time.

"The messaging accompanying these orders, and indeed the language of these orders themselves, is fraught with inconsistency and ambiguity," Kent writes.

On Nov. 13, the provincial health officer introduced restrictions that said "no person may have present at a private residence or vacation accommodation, either inside or outside, a person who does not reside with them," although a person who lives alone may host one or two people with whom the person regularly interacts.

On Dec. 9 and 15, Dr. Bonnie Henry defined some of the terms of gatherings and events. Among the definitions, she said a "vacation accommodation" means a house, apartment, condo or other living accommodation that is not the occupant's primary residence.

However, some language in the order remains undefined, including what is meant by gatherings, someone living on their own, and regular interaction.

There are also possible ambiguities surrounding people who may use two or more residences from time to time, the judge says.

"Despite its obvious potential application to parents with children, these orders provide very limited express direction for family units and parenting regimes in all their various forms," Kent says.

"One of the issues in dispute in this case is whether a parent who has two small children qualifies as a person 'living on their own,' whether generally or for the time he/she is not parenting the children, and hence is entitled to socialize with two other people with whom he/she 'regularly interacts,' " he says.

Another issue is whether another person can move into the parent's household during the term of the public health order and hence become and "occupant."

In reviewing the case, Kent said he found the father's residence outside Vancouver to be defined as the new partner's "vacation accommodation," as she lives there when not living at home. She is thus an "occupant" of the father's home for the purposes of interpreting the orders.

There is also no evidence that the father or his new partner are behaving recklessly, the judge says.