Beginning in March, 2020, the British Columbia provincial government imposed social distancing directives to reduce the spread of the novel coronavirus.
One consequence of social distancing is that separated parents have had to figure out if, or how, to exchange their children between households. This has become even more difficult as the various courts in BC have suspended regular operations. The courts are currently only hearing essential and urgent matters by videoconference or telephone.
Over the last few weeks there have been a number of reported court decisions in British Columbia regarding urgent parenting issues during the pandemic. We’ll take a look at a few of these cases to provide a sense of how the courts are dealing with co-parenting at this time.
• On April 1, 2020 the BC Provincial Court released its decision: V.C.S. v. T.S., 2020 BCPC 60. The father, from Prince George, sought the return of his two children their mother’s home in Pitt Meadows (a 750 kilometer drive from Prince George). The children were visiting with their mother in Pitt Meadows during spring break. The mother refused to return the children as she was fearful of driving with the children and visiting public locations such as gas stations, restaurants, etc. with the children. The judge found that using businesses like gas stations posed a limited risk but said, “despite that risk, I note the health authorities have not sequestered everyone to their houses and banned all public outings. Rather, safety protocols have been implemented to mitigate the risk of transmission.” (paragraph 16). The judge went on to say that the mother could follow some simple measures to reduce the risk of entering businesses, such as standing away from others, washing hands in the bathroom, and even said “the children could be given disposable gloves or towelettes to use as makeshift gloves when making contact with handles, lids, and paper rolls in the course of using the washrooms. They can lay down a toilet paper lid before they sit. They can wash their hands thoroughly upon completion.” (paragraph 22). The children were ordered to be returned to their father.
• Also on April 1, 2020, the BC Provincial Court issued its decision: N.J.B. v. S.F., 2020 BCPC 53. In this case, the father asked the court to suspend the mother’s parenting time with their child. The father was concerned that the mother would not obey the social distancing directives and expose the child to the virus. The court relied on an expert psychologist’s recommendations (Dr. Michael Elterman) respecting co-parenting during COVID-19. The judge noted that Dr. Elterman has considerable expertise in child matters “and is well known to this court.” (paragraph 27). The judge set out Dr. Elterman’s recommendations and said they “should form part of decisions regarding parenting arrangements,” which include:
(1) If a parent has had contact with an infected party, they should disclose this immediately to the other parent.
(2) If the parent is infected or even ill with symptoms or needed to be tested for Covid-19, they should not take the child.
(3) If the parent is in a home with older family members or friends or with individuals who are immune-compromised, the child should not be in that home.
(4) There should be no play dates and the child should not be taken to family or social gatherings.
(5) If parenting time is to occur in a public place such as a community centre, a mall or a restaurant, then it should be suspended.
(6) If a supervisor is required and who is not the spouse of the parent and living in the home, then the parenting time should be suspended.
(7) If either parent or anyone in the household is in an Essential Service or still working with the public, eg. doctors, nurses, at a supermarket or pharmacy, flight attendant, etc.) then this can represent an increased risk to the child. (paragraph 28).
The court in N.J.B. clearly stated it will require more than mere allegations that a parent will not follow social distancing directives. Rather specific examples and evidence are required in order to suspend one part’s time with the children (paragraph 31, citing an Ontario case: Riberio v. Wright, 2020 ONSC 1829). The court in N.J.B. concluded that the father had not proven that he mother had done, or would do, anything to increase the risk of the child contracting coronavirus and he was, accordingly, ordered to follow a prior order.
If you have questions about an urgent parenting concern, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward during this uncertain time.
Darren maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.
Estate planning is an important part of protecting your family and loved ones in the event of your death or loss of capacity. It is always a good idea to consult with a legal professional who can advise you on your rights and obligations and help you prepare your Will and incapacity planning documents. Below are some things to think about before meeting with a lawyer or notary:
1. What are your general objectives? What do you want to achieve? What do you want to avoid? For example, you may wish to ensure your spouse and children are looked after and reduce the impact of taxes.
2. Who do you want to appoint as executor of your Will? This is the person who will administer your estate. Often spouses are appointed as executor since your spouse likely has the most knowledge of your assets. Make sure to speak to your intended executor(s) in advance to make sure he or she is willing to act. Being an executor is not a fun job and naming a person as executor does not mean that person is obligated to take on the role. Consider who you would like to appoint as an alternate executor if your first choice is unable or unwilling to act as your executor.
3. Consider whether you will gift any specific assets or cash to a particular beneficiary or beneficiaries – for example, a cash gift of $1,000 to a close friend or your jewellery to a granddaughter. Please keep in mind that assets will change over the years.
4 The residue of your estate is everything that is left after payment of debts, funeral expenses, executor’s fees, taxes, legal and other expenses incurred in the administration of your estate, and following any gifts of specific assets or cash, if any. Consider how you want the residue of your estate to be distributed. You should also consider whether you want your beneficiary or beneficiaries to reach a certain age before they receive their share of your estate. Are any beneficiaries disabled and receiving government benefits? If so, it is important to develop an estate plan that does not inadvertently disqualify the beneficiary from receiving those government benefits.
5 If your beneficiary or beneficiaries have died before you, what happens to their share? Will it go to that beneficiary’s children, if they have any children alive on the date of your death? Will it go to a different beneficiary? For example, you may wish to leave everything to your spouse if they survive you. If your spouse has died before you, you may state that his or her share will be evenly distributed among your children (if any). What happens if one or more of your children have died before you? Do you want that child’s share to pass to his or her children or do you want that child’s share to be divided among his or her siblings who are still alive at the time of your death?
6. How would you like your estate distributed in the event of a family tragedy where all of your beneficiaries have died before you or at the same time as you? Will your estate go to your parents? To your siblings? To a charity? To a friend?
In British Columbia, the Wills, Estates and Succession Act (“WESA”) is the governing legislation about wills and estates. Under WESA, spouses (both legal and common law), as well as natural and adopted children, can apply to court to vary the Will of a deceased spouse or parent if the Will does not make adequate provision for his or her proper maintenance and support. The court may disregard the wishes of the deceased if the reasons for disinheritance are not rational or reasonable. The court may amend the distribution to one that it thinks is fair in the circumstances.
Power of Attorney
A power of attorney grants someone else the right to act on your behalf with respect to your financial and legal affairs. It is important to appoint someone you trust because the power of attorney is basically like a permission slip for that person to manage your assets. Once you grant someone power of attorney, they become known as your “attorney.” The scope of the authority can be as broad or as specific as you like. You may allow your attorney to manage all aspects of your financial and legal affairs indefinitely, or you may wish to restrict it to specific tasks or dates. The right to act as your attorney may be effective immediately or only in the event you have lost mental capacity and are incapable of managing your own affairs. It is important to include language in the power of attorney that the authority continues despite your loss of mental capacity in order to make it an “enduring” power of attorney.
Consider who you would like to appoint as your attorney and who you would like to appoint as an alternate attorney if your first choice is unable or unwilling to act. Consider whether you would like your attorney’s authority restricted in any way and when you would like the attorney to be able to start acting on your behalf.
A representation agreement is a legal document appointing someone to assist you or act on your behalf for health care and personal care matters. This tool gives someone the right to give consent or refuse to give consent on your behalf, if you are unable to do so yourself, to minor or major health care (including decisions about medication, tests, surgery and end of life comfort care) and the right to make decisions about your personal care, such as living arrangements, diet, clothing, exercise, taking part in activities and personal safety issues. Enhanced representation agreements include end of life decisions and give your representative the authority to refuse life support under certain circumstances.
Having a representation agreement ensures that someone you trust will have legal authority to carry out your wishes if you are incapable of giving or refusing consent. By setting out your end of life decisions in the agreement, you may provide comfort and ease the emotional anguish of those who have to decide whether life support measures should be continued or withheld.
Consider who you would like to appoint as your representative and who you would like to appoint as your alternate representative if your original representative is unable or unwilling to act. Consider whether you want life support measures continued or withheld (i) in the event you are terminally ill with no chance of recovery; and (ii) in the event you are in a permanent vegetative state with no chance of recovery. Consider whether you would want medicine administered to you in your terminal state even if it hastens your death.
Krystin Kempton is a Partner at Nixon Wenger LLP where she has a general solicitor’s practice, advising corporate and individual clients on corporate and commercial transactions, lending and borrowing, wills and estates and real estate matters.
This was a claim that involved a man in his 60’s who spoke little English and had worked at manual jobs all his life. Mr. Kalashnikoff was referred to James by his brother who was also a client. Mr. Kalashnikoff was involved in a head-on collision with the defendant. It appeared that the defendant had strayed across the yellow line and into Mr. Kalashnikoff’s lane of travel when the accident happened. Unfortunately, ICBC denied liability even though the facts seemed to point clearly to the defendant being at fault. Mr. Kalashnikoff was not able to express how this accident had really impacted his life due to his limited English. James was able to bring out his story through his two adult daughters as to the change the accident had brought about in him, and how he was not the same man he used to be. ICBC offered very little to try and resolve this matter as they did not view this claim to be significant at all. James was able to bring this matter successfully to trial and obtain an award of $130,000.00. This was far greater than what ICBC was prepared to settle the matter for. This decision illustrated how our court system can be used to help accident victims who are immigrants and may feel that they do not understand our system of laws and even fully understand our language. James was pleased to be able to help such a vulnerable person in our society.
In British Columbia, the Occupiers Liability Act, RSBC 1996 c 337, sets out the legal obligations that occupiers owe to people visiting their premises. Occupiers can be individuals or businesses who are in physical control of the premises, or those who have responsibility for, and control over, the condition of the premises, the activities conducted on the premises, and who is allowed to enter the premises. This can include business owners, landlords, tenants, and home owners.
Occupiers owe a legal duty to ensure visitors are reasonably safe in using their premises. This duty applies to the condition of the premises, activities on the premises, or conduct of others on the premises. It is important to note that there are many factors to assess when determining where the responsibility falls in the event of injury or loss. How far this duty extends will depend on the circumstances of each situation.
You may be wondering: how does this apply during a pandemic and the current context of COVID-19?
Generally, the liability of occupiers remains the same. However, be aware that occupiers may be found liable for the spread of the virus at their premises. If an occupier fails to take reasonable care to respond after a person known to have been infected with COVID-19 attended the premises, the occupier may well have breached its legal obligations under the Occupiers Liability Act.
Reasonable response efforts to ensure the safety of visitors may include:
• immediate sterilization of the premises;
• closure of the premises during sterilization efforts; and
• clear and timely warnings to visitors and employees.
It is important for occupiers not to ignore applicable privacy laws in these circumstances. While appropriate information may need to be shared, specific names should not be released.
Occupiers should also consider having a formal COVID-19 plan in place that sets out response efforts in the event of virus exposure.
We stress that all cases are fact specific. The information above is intended to provide some guidance during these uncertain times. You should obtain legal advice specific to your situation if you have had a potential exposure at your premises or if you have been exposed to the virus while attending premises.
Allison is an Associate in the Civil Litigation practice group at Nixon Wenger LLP. She has a general civil and commercial litigation practice, with an emphasis on tort related disputes, contract disputes, personal injury litigation, employment matters, and maritime, shipping, and environmental law. Allison has represented clients at all levels of court in British Columbia, and works with her clients to find solutions that work best for them within the litigation process.
What Incapacity and Estate Planning Documents Do I Need?
We recommend you have a Power of Attorney, Representation Agreement, and Will.
What Is a Power of Attorney and Why Do I Need One?
A Power of Attorney is a legal document that you can use to appoint a trusted person(s) to make financial and legal decisions for you, in the event you are incapable of doing these things yourself while you are alive. The person you appoint is called your “attorney”. You can give your attorney broad powers to step into your shoes as needed to deal with your finances and your real estate or your business and legal matters, OR you can place limits on the power that you give them. A Power of Attorney is a valuable part of your estate and incapacity planning.
Who Should I Choose as my Attorney?
You should appoint someone you trust because a Power of Attorney is a powerful document. Many people choose their spouse, a close family member or friend. A person does not have to agree to act as your attorney, so you should talk to them ahead of time and make sure they are up for taking on the job.
You can appoint more than one attorney, with different or the same authority. If you appoint more than one, they must act unanimously unless you state otherwise.
What Are the Duties of My Attorney?
The Power of Attorney Act of B.C. confirms that an attorney must act honestly and in good faith, must exercise the care and skill of a reasonably prudent person, keep proper records for inspection, keep your assets separate from your attorney’s assets, and always act in your best interests.
Does a Power of Attorney Allow my Attorney to Make Health Decisions For Me?
No. If you want to appoint a legal representative to make personal and health care decisions for you if you cannot make these decisions on your own, you will need to make a Representation Agreement.
Can I Cancel my Power of Attorney if I Change My Mind?
Yes. As long as you are mentally capable, you can revoke/cancel a Power of Attorney.
We at Nixon Wenger LLP specialize in estate and incapacity planning. Please contact us and we would be happy to help you prepare a Power of Attorney as part of your complete estate and incapacity plan.
Elise Allan is a Partner at Nixon Wenger LLP who works extensively with individuals, assisting them in such matters as the purchasing and selling of real estate, preparing Wills, Powers of Attorney and Representation Agreements as well as obtaining Grants of Probate.
Show them some HEART…better yet, show them your white hearts.
A white heart is a symbol commonly used to convey hope, pure thought and steadfast intention. Please take the time to share a white heart to show your appreciation during the COVID-19 crisis. Hang a white heart on your front door or share some heart in your social media posts. Send a message via whiteheartsforvjh.ca and let the front-line workers and medical staff at our hospital and in the North Okanagan know you see them and appreciate their efforts.
Thank you for all you are doing! #stayathome #whiteheartsforvjh