Earlier this summer we blogged about international child abduction and how courts approach such issues when laws such as the Hague Convention do not apply. While international child abduction is a serious issue, there are many more issues that come up between separated or divorced parents living in different countries. In today’s blog we look at a case that discusses how parenting time in such a situation can be impacted by COVID-19.

Two parents, one child, two countries

The parents were married in July 2008 and had one child together in 2010. They lived in France at the time of their separation and were divorced there in 2012. Following the divorce, the child’s primary residence was with the mother, while the father was granted extended visitation and accommodation rights.

In 2016 the mother requested and was granted permission to move with the child to Toronto, where she has since re-married. She brought the child with her, and they live with the mother’s new partner and their two other children. The parenting order that came from this move granted the father parenting time during the child’s school breaks, including the last six weeks of summer vacation. The father’s parenting rights were to be exercised in France unless he wished to exercise them in Toronto.  

COVID-19 makes international travel difficult

Due to the COVID-19 pandemic, the mother told the courts she had concerns about the child travelling to France to spend time with the father. She brought an urgent motion for interim relief, requiring the father to exercise his parenting time in Toronto for as long as the Government of Canada’s advisory against non-essential international travel remains in effect. In the alternative, she asked that access by the father be suspended until such a date, at which time he would be able to make up for that lost access. In the meantime, the father initiated an allegation of non-compliance with the police services in France.

Can and should the parenting order be varied?

The court began its analysis by referring to the Children’s Law Reform Act, which states a court shall only exercise its jurisdiction to make an order for custody or of access to a child if the child is “habitually resident in Ontario at the commencement of the application of the order.”

In this case, the child has been living with the mother in Toronto for the last two years and was therefore habitually resident in Ontario. While the father stated he preferred to settle the matter via international arbitration, he didn’t formally oppose the jurisdiction of Ontario’s courts, so the matter went ahead.

The CLRA allows for courts to supersede extra-provincial orders in respect to custody or access of a child “where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and… the child is habitually resident in Ontario at the commencement of the application for the order[.]” The court cited two recent decisions where courts agreed that it would be unwise for a child to travel internationally at this time.

The father argued that precautionary measures could be taken to ensure the child’s safety, but the court was not convinced, writing the child “would be taking a lengthy flight, unaccompanied, on a commercial airline. The (mother) was unable to obtain assurances of any additional measures in relation to unaccompanied minors on either Air France or Air Canada. The Applicant’s evidence is that on Air France, only children over 11 years of age are required to wear masks.”

The court agreed that the pandemic constitutes a material change in circumstances and that a variation of the parenting order is warranted. The court noted that while it was not ideal for the father to have to exercise his parenting time in Canada, doing so would be in the best interests of the child.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

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