Judge says mother's COVID-19 washroom worries unwarranted

A Pitt Meadows woman has been ordered to return her children to their father in Prince George after she failed to convince a judge the need to use the bathroom during the drive home would place them at increased risk of catching COVID-19.

The woman — known as T.S. — refused to send the children back to her ex-partner after they spent spring break in the Lower Mainland.

As justification, T.S. filed a series of reports about fatal cases of children contracting the novel coronavirus. 

But Prince George Provincial Court Judge Cassandra Malfair wasn't biting.

"She argues that asymptomatic people could be using the public washrooms," Malfair said.

"Despite that risk, I note that 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."

'Need to eat and use the washroom'

T.S. has a history of ignoring court orders related to child custody since splitting from her ex-partner — J.V.S. — in 2014.

The father is the primary caregiver for the three children, who spend Christmas, spring break and summer vacations with their mother.

In keeping with that arrangement, J.V.S. dropped the kids off in Pitt Meadows on March 15. But when spring break ended, T.S. refused to send them back to Prince George.

"The proposed method of transportation is that the children would be in the private motor vehicle of their parents from their mother's residence in Pitt Meadows to their father's residence in Prince George, with the children being exchanged between the parents part way," the ruling says.

"T.S. argues that returning the children to Prince George is nonetheless unsafe because they would need to eat and use the washroom during their eight-hour journey, which would expose them to the risk of transmission of the virus."

Custody and COVID-19

The ruling is part of a rapidly growing body of decisions considering the implications of COVID-19 for the various types of activities involved in custody agreements. 

Judges have been asked to decide whether parents can open their houses to prospective home buyers and whether nurses should be able meet their children in person.

Malfair said the issue of food and snacks could be easily solved by T.S. packing something for the children to eat before they leave Pitt Meadows.

Even then, the judge noted that the government has not closed down restaurants for take-out service.

"With respect to the children's need to use washrooms, there are numerous rest stops and gas stations on the highway between the Lower Mainland and Prince George," Malfair said.

"The public health authorities have not considered such amenities to be of sufficient risk of viral transmission to warrant their closure. Indeed, numerous truckers and delivery persons continue to use these facilities during the course of this pandemic to keep the vital supply chains open."

'They should go home'

The judge gave T.S. a chance to find some directives or evidence relating to the specific dangers of public washrooms, but beyond a reminder that washing hands after using the bathroom was a good idea in or out of a pandemic, the judge was not impressed.

She said the children could use roadside rest stops so they don't have to go into gas stations.

"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," Malfair said.

"In short, with the smallest precautionary measures, I can see no reason why the children cannot use a washroom safely during the eight- to nine-hour drive to Prince George."

T.S. also pointed out that public health officials were discouraging non-essential travel. But the judge said she considered travel back to their primary home to be essential.

"They should go home," she said.

And just in case, she gave RCMP the power to enforce her order.