B.C. judge says polyamorous dad not breaking COVID orders with new partner and her husband

A British Columbia judge says a polyamorous father is not breaching the province's COVID-19 health orders by sharing his Squamish apartment with a new partner who is also living with her husband in Vancouver.

In a decision released just before Christmas, the B.C. Supreme Court said the man can still have visits from his two young children despite his ex-wife's fears that his new partner's open marriage might expose them to the coronavirus.

Justice Nigel Kent said the province's public health orders would be challenging for anyone to decipher — even without the extra romantic complications.

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

"It is not surprising that reasonable people can disagree about their interpretation and application in any given circumstance."

What does 'living on their own' mean?

The couple are named in the decision, but CBC News has chosen not to identify them because part of the ruling deals with the way in which the subject of the father's new lifestyle is introduced to the children — a four-year-old daughter and six-year-old son.

The mother withheld the children from the father's regular parenting time beginning on Dec. 7 because she believed the time he spent with his new partner "breached the rules of social engagement established by the COVID-19 public health orders."

B.C. Provincial Health Officer Dr. Bonnie Henry has issued orders defining such terms as "private residence" and "vacation accommodation."

The rules say occupants of either shouldn't have people who don't live with them come to visit or stay, unless they live alone — in which case they can be visited by up to two people with whom they regularly interact.

But as Kent noted, the orders do not "define the concept of 'living on their own' or 'regular interaction.'"

The judge was asked to parse Henry's edicts to answer a number of key questions:

Does a parent who has two small children still count as someone "living on their own" for the purposes of socializing with others?

And can a polyamorous woman with a husband at one primary residence become an "occupant" of another alongside her lover?

Mother learned of relationship in March 2020

Kent said confusion around the COVID-19 rules was "graphically demonstrated" by B.C. Premier John Horgan, who publicly announced plans to spend Christmas at home with his wife, son and daughter-in-law before "it was pointed out to him that such a gathering was actually a breach of one or more of the public health orders currently in force."

The father began dating his new partner in November 2019 after meeting her and her husband at a local polyamory support group.

"They consider their partnership to be as strong and as important to them as any monogamous relationship would be, although they are both free to date others if they wish," Kent wrote in his decision.

"However, [the father] swears none of the three people involved [he, his new partner and her husband] are dating anyone else at this time and they 'do not plan to do so during the health restrictions currently imposed due to the COVID pandemic.'"

The children's mother learned of the relationship in March 2020. She didn't like it then, but things came to a head with the public health orders issued in November.

"She has a husband who she lives with. I am not okay with that exposure. He comes with his own risks. So does she!!!!," the mother wrote in an email to the father.

"Both of them have more than 'household' contacts. That isn't okay for the kids or me.... And she is not part of your household. A household are the people you live with. They don't live with others."

Courts have been flooded by challenges

Minus the multiple lovers, Vancouver family lawyer Leisha Murphy said Kent's ruling speaks to issues her clients have been grappling with since the beginning of the pandemic.

She said the initial lockdown saw no specific mention in the orders for children to be able to move from residence to residence in split families.

Courts were flooded by challenges from parents worried that their exes were breaking the rules.

Murphy said the threat of a deadly virus heightens the central question underlying most child custody disputes: "Is that other parent taking the precautions needed to keep everyone safe? Are they taking unnecessary risks?" 

She said judges have had to weigh the risk of moving from household to household against the potential harm to children of being denied access to a regular caregiver.

"We're in month 10," Murphy said.

"There's a bit of an acceptance that this could go on for some time and we need to be able to live."

New partner allowed to travel between houses

The mother claims the father paints her as a "crazy, scorned woman with control issues." He says she disparages his new partner "in the rudest possible terms."

Kent found that the father's new lover had a key fob to his Squamish residence, where she kept clothes, toiletries and cookware. She's in the process of getting a parking spot.

"In short, she is living in the father's apartment when she is not living at her home in Vancouver," the judge said.

"In these unique circumstances, while she has a 'private residence' in Vancouver, the new partner is also 'an individual who occupies vacation accommodation' when she spends time with the father in Squamish and she is thus an 'occupant' of his apartment for the purposes of the [orders]."

The bottom line, the court said, is the new partner can travel between residences — and men — without breaking any rules.

Kent also found there was no evidence that the father, his new partner and her husband were acting recklessly.

The judge ordered that the shared parenting regime should resume immediately. He also said the father should be given visits to compensate for the time he missed in the past month.

Kent did agree, however, that the mother should be consulted before the children were introduced to either the father's new partner or the "concept of polyamory."