Child’s best interests primary factor in accommodating disabled parent fearing COVID effects: BCCA

When accommodating a disabled parent, the primacy of the child’s best interests must still be maintained, the BC Court of Appeal has ruled.

In White v. Schultz, 2022 BCCA 297, the divorced parents of a nine-year-old child have been involved in a protracted dispute over where the child should attend elementary school. The mother lives in East Vancouver with her husband and two children. The father lives in Burnaby. He has chronic pain because of a motor vehicle accident in 2012. He is disabled from working, walks with a cane, and does not drive.

The child attends Thunderbird Elementary School, close to the mother’s home in East Vancouver. The father applied to have the child attend Cameron Elementary School, near his home in Burnaby. He said his commute to Thunderbird involves a combination of walking and public transit that aggravates his pain to such an extent that he has no remaining energy to spend meaningful time with the child.

The chambers judge dismissed the father’s application and ordered the child remain in Thunderbird. The judge recognized the father’s disability and increased risk of the impact of the COVID-19 pandemic. However, the judge considered public health protocols and the widespread availability of vaccines and concluded that the risk to the father is “within reasonably tolerable levels.”

The father argued that he is at higher risk than the baseline population for severe infection if exposed to COVID-19, such as on public transportation. He also said that the judge gave little weight to the pain he would experience during the long commutes to and from Thunderbird. He asserted Charter values should be considered in the context of his disability, and the court should not allow a situation that would result in “artificially keeping one of the parents down.”  The father emphasized that no accommodation would be needed if the child attended Cameron.

COVID-19 risk

The father’s evidence of his COVID-19 risk was a certificate from his physician stating that his medical condition could result in decreased immune status. The court did not find evidence to establish the father’s actual immunity status or quantify his risk levels resulting from that status meaningfully. The court observed that the chambers judge appropriately took judicial notice of public health protocols and the availability of vaccines.

The court said that while there was no evidence linking public health protocols and the availability of vaccines to the father’s specific situation, there was also no evidence that would have compelled the judge to find that the father would be exposed to unreasonable risk levels if the child continued to attend Thunderbird.

Accommodation

The court pointed out that the father’s disability was considered, respected, and accommodated by the chambers judge concerning the child’s best interests and the father’s ability to continue to participate in the child’s life and meet her needs. The judge considered a spectrum of accommodations available to maintain the primacy of the child’s best interests while minimizing the toll of commuting on the father. Accordingly, the judge chose one point on that spectrum in light of the evidence. The court said the judge was sensitive to the father’s disability. She arrived at a special accommodation within the context of the child’s best interests. Accordingly, the court dismissed the father’s application to have the child change schools.