BC Supreme Court justice Nigel Kent denounced B.C.’s public health orders (PHO) for being confusing, in a December 22 judgment on a child-custody matter.
“The language of the orders themselves is fraught with inconsistency and ambiguity, and it is not surprising that reasonable people can reasonably disagree about their interpretation and application in any given circumstance,” Kent wrote.
The orders in question ban people from allowing into their homes people who are not part of their household, although single people are allowed to include in their bubble-household individuals who they do not live with. The orders also ban events and public gatherings and are set to be in place until at least February 5.
Kent said that the "confusion" in the health orders was underscored when Premier John Horgan in December was not clear how they were to be applied. Health Minister Adrian Dix incorrectly told the premier that it would be OK for the premier to spend Christmas Day at home with his wife, his son, and his daughter-in-law, and that was what the premier said he would do. Dix and Horgan have each since apologized for misinterpreting the orders.
Horgan changed his plans after he learned from media that the gathering he had planned was against the law.
Despite Kent making clear that he thought the PHOs are confusing, he still was forced to interpret the PHOs to determine whether a father was breaking the orders, and therefore should not be able to have visits with his four-year-old daughter and six-year-old son.
Kent ruled that the father was not breaking the PHOs and could see his children.
He also used his belief that the PHOs are confusing as part of his rationale to rule that the two parents split court costs.
“Costs of an application, such as this, are usually awarded to the ‘successful party.’” Kent wrote. “However, the court retains a discretion to order otherwise in appropriate circumstances. The mother's application was triggered in large measure by the ambiguity that is found in the PHOs.”
The custody battle itself centred around mother Andrea Holly Buckman’s concern about her ex-husband, Christopher Mark Wyckham’s lifestyle, his penchant for polyamory, and the potential health risk of this on the couple’s children.
Kent wrote that the father described polyamory as being “a belief that all genders are equal, and that loving, negotiated, individualized, consensual, and egalitarian relationships can include more than the Judeo-Christian ‘normality’ of a monogamous heterosexual couple.”
Wyckham had started a relationship with a woman and that woman’s husband, both of whom he met through a local polyamory support group, Kent wrote.
While the three are advocates of relationships outside the heterosexual, monogamous norm, the father assured Kent that none of the three is currently dating anyone else, and that none of them plans to do so “during the health restrictions currently imposed due to the COVID pandemic.”
Wyckham said Buckman became aware of his new partner in March 2020, and that she sent countless emails and other digital messages generally disparaging his new partner “in the rudest possible terms,” Kent wrote.
Wyckham gave his new partner a key and a fob to his Squamish apartment in mid-July, and soon afterward looked into getting her a parking spot. Wyckham also has a Vancouver home, Kent wrote.
Wyckham’s relationship situation is also set to soon change, because his new partner’s husband plans to move to the U.K. sometime this year for a two-year period to attend university, Kent wrote.
“The husband says, quite accurately, that the information published on the provincial health officer's website is ‘not clear,’ on how the PHO restrictions apply to a co-parent whose children only live with that parent 50% of the time,” Kent wrote.
“Both he and his new partner interpret the orders and the website information to mean that a person in his co-parenting situation is permitted to include his new partner in his ‘core bubble’ and that they are not violating any health orders by continuing to have in-person contact with each other.”
Wyckham works from home, does not see any friends other than for an occasional walk outside, and he has virtually no in-person interaction with adults other than his new partner, Kent wrote.
Buckman said in affidavits that she has “concerns about the impact on the children of a polyamorous lifestyle, particularly if the father is engaging or will engage in multiple romantic relationships simultaneously,” Kent wrote.
Buckman said Wyckham has tried to paint her as a “crazy, scorned woman with control issues” – something that she denies, Kent wrote.
Rather, Buckman said that her concern is having her children conduct in-home visits with Wyckham, and his new partner, “because they are contrary to the PHOs, and they introduce an unreasonable risk of COVID-19 infection to both the children, as well as herself,” Kent wrote.
Kent explained why Wyckham and his new partner were not breaching the PHOs.
“One of the key points raised by the father on this application was that any breach of the PHO regime did not necessarily or automatically mean there existed a risk of harm to the children significant enough to justify denial of parenting time for the father,” Kent wrote.
“He argued that any harm flowing from the alleged breach must outweigh the harm caused by the absence of such valuable parenting time. He also argued that, in any event, the mother has not established any risk of harm to the children arising from the presence of the father's new partner in either his life or that of the children.”
Kent cited an Ontario court case that said that parenting disputes that involve COVID-19 will be determined on a case-by-case basis, and that both parents should do all they can to avoid contracting the virus.
“I agree with these sentiments,” Kent wrote.
He then outlined some of Wyckham’s “opinions” that were in an email to Buckman in early November. Kent wrote that he does not agree with those opinons.
Wyckham's email said: “I don't believe there is any meaningful risk to the children, or to you, even if you or they were to contract COVID. I see this largely as an exercise in public health to protect those (such as my parents) who are at risk,” Kent wrote.
Kent added that Wyckham’s counsel argued that “the admonitions in the early COVID case law should perhaps be given less weight in light of the current data to the effect that infection rates among young children are exceedingly low (approximately 4% of all cases), hospitalizations exceedingly rare (1%), and deaths nonexistent (0%)."
The lawyer said that this rationale is why public health authorities are letting children go to school, Kent wrote.
Kent stressed that he disagrees with the lawyer's statements.
“The court’s role is to ensure the protection and promotion of the best interests of the children as the paramount consideration in parenting decision-making,” Kent wrote.
“The science and the data is irrefutable: while vaccines may be increasingly available over the next nine months or so, COVID-19 is still contagious and continues to cause serious illness and death. Reckless social interactions and gatherings are a major culprit in the transmission of the virus. There has been a rapid increase in cases recently, which, if not checked, threatens to overwhelm the capacities of hospitals and other healthcare facilities. Now is not the time to lower the guard.”
However, Kent said he had no evidence that Wyckham or his partner were behaving recklessly. Instead, Kent wrote that the evidence suggests that the two were behaving responsibly, are symptom-free, wear masks and have ceased all other in-person social interactions.
“Provided these measures continue, I perceive little, if any, increased risk to the physical safety of the children arising from their introduction to the father's new partner,” he wrote.
As a result, Kent wrote that there were no grounds to deny the father visits with his children.
He added that Wyckham is entitled to future visits with his children, as well as some extra time with them in lieu of visits that Buckman had denied.