Social distancing rules are affecting everything from supermarkets to child custody.

(BEN BULMER / iNFOnews.ca)

A B.C. nurse has had to resort to court action after the father of her eight-year-old son refused to return him to her after she treated a patient with COVID-19.

The father suggested his former partner could visit with her son from the deck of her second-floor apartment until she was cleared.

A Provincial Court decision April 7 says that before this issue, the Lower Mainland couple had an amicable parenting arrangement. They separated six years ago, were "intelligent and educated" and had "done their best" to resolve the dispute before heading to court for the first time. By the time of the hearing, the father was prepared to return access because the nurse was through the incubation period without symptoms, but the case proceeded to get clarification on a point many B.C. families are likely confronting.

The hearing was done by phone.

"The COVID-19 pandemic has affected our social community at its very roots, and it is clear it will continue to do so for a considerable period," Judge Patricia Bond says in the decision. "We are in unchartered territory when it comes to decisions about parenting time."

The case highlights a new era in custody disputes in the age of COVID-19 and some of the complications it brings for families. A handful of cases reported by the provincial court can only suggest how judges will deal with them. Courts are essentially closed other than some higher priority and family court cases judges find to be “urgent”.

In one case, a father withheld his child from a court-ordered child custody agreement because of what he considered heightened risks brought on by the pandemic, but the judge ordered him to follow the original court orders. In another case, a judge simply refused an “urgent" hearing requested by a parent to get full-time custody of their child, saying it was impossible under the circumstances. In criminal court, a judge had to assess if an accused person with lung issues was safer in prison or a treatment centre (he chose prison). In another case, a preliminary hearing for a Kamloops woman was delayed until at least May.

As the COVID-19 pandemic continues and criminal court cases are adjourned for longer periods, criminal matters are running the risk of hitting time limits imposed on criminal trials. The Supreme Court of Canada has said trials must be completed within 18 to 30 months for most criminal trials or the case cannot proceed.

In the case of the Lower Mainland couple, judge Bond ordered the father to return the child to his mother, stating it has been more than 14 days since the nurse came into contact with the COVID-19 patient and their child is not at an elevated risk from the virus.

Bond noted she had no authority for assessing custody issues if a parent works with the public during a pandemic. The judge goes onto say this issue isn't just specific to healthcare workers but "everyone from clerks at the grocery store and pharmacy... (to) police officers, social workers, fire officials (and) paramedics."

"On the other hand, now that the virus is spreading in the community, we are exposing ourselves to the risk of contracting the virus by accessing any services, whatsoever," said the judge.

Bond noted the mother was in a frightening position of being before a judge arguing for custody for the first time because of a job society needs her to perform.

"I will note that in reaching this decision, I have not been impacted by (the mother’s) comment that “her work is her work, but her son is her life, and if it came to a choice, she would choose her son”. While that would be a significant loss to the health care system, it does not influence my decision in this matter. For instance, if I were to find that (the child) was particularly vulnerable to suffer severe consequences from contracting the virus, I would not be inclined to expose him to any risk, regardless of S.R.’s stated position,” Bond wrote.

She ordered that the parties continue with previous arrangements for share custody, except the mother would get extra days she was denied.

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