With the school year here, it’s natural for there to be a number of questions around what to do if two parents who are divorced or separated can’t agree on how or where their children should attend school. These questions can arise during any school year, but COVID-19 has brought new wrinkles to these difficult decisions. Last week we looked at two parents who couldn’t agree on whether their child should attend school. This week’s blog looks at two parents who were at odds over whether it is currently safe for the child to move countries and schools.

Two parents in two countries

The parents were married in 2003 and separated in 2013. They had three children together, who are 15, 13, and 10-years old. At the time of the separation, all of the children as well as the parents lived in Hamilton, Ontario. However, in 2013 the mother moved to St. Louis with the children, while the father remained in Hamilton. The father sees the children several times each year, and the parents have followed an access schedule outlined in an order.

On June 20, 2020 the children arrived in Hamilton to visit their father. They were originally supposed to return to the United States on August 9, 2020. However, the father brought an urgent motion on July 30, asking the court to make a temporary order to allow the children to remain in Hamilton and attend school there.

Why the father requested the children move to Ontario

The father’s submission hit on a number of issues that could be addressed by a move, including the children’s desire to live in Canada and the mother’s approach to COVID-19 as well as how St. Louis and the United States is handling the pandemic. The father said the mother is not adhering to all COVID safety protocols, statin the children do not wear masks, that they have traveled across state lines, and that the mother said she had no plans to have the children vaccinated.

The mother, meanwhile, argued that the father was not being honest about her approach to COVID-19, stating she has complied with all precautions, including the use of face masks.

Has a material change in circumstances been demonstrated?

The court stated that for an existing order to be changed, there party asking for the change must demonstrate a material change in circumstances. The court acknowledged that COVID-19 has upended the lives of nearly every family, but added it is important to keep children’s lives as “normal” as possible during the pandemic.

The court did not find that the father brought sufficient evidence to demonstrate a material change in circumstances. Instead, his evidence is more akin to a list of allegations against he mother. The court said, “how could we possibly risk life-changing upheaval for these children on the basis of bald and uncorroborated allegations that the mother won’t wear masks or engage in social distancing?  Particularly where the mother categorically denies these allegations, and there is no evidence that she has ever been reckless in any aspect of her life.”

In this case, the court ordered the father to return the children to their mother’s care in St. Louis.

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.

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