The holidays can be a difficult time for all members of divorced families. Unfortunately, much as COVID-19 has impacted most areas of life, it has introduced unique legal questions related to travel for children of divorced or separated parents as well as to considerations for what is in the best interest of a child. A recent decision from the Ontario Superior Court of Justice looks at how international travel requests should be treated during the most recent variant outbreak of COVID-19.
Father wants to take child to Greece for the holidays
The primary issue that led the parties to court was the father’s request to have parenting time with the child exercised in Greece.
The parents were married in 2008 and had one child, born in 2011 before they divorced. The child was 10 years old at the time of the trial and will turn 11 before 2021 is over. The father lives primarily in New York City but maintains a condo in Toronto where he exercises parenting time with the child. He gets parenting time on alternate weekends from Wednesday after school until Sunday evening.
Before we get into the father’s application for travel, a few sections of their divorce order are worth mentioning. For major decisions, the parties are to solicit the impact and opinions of one another, but in the event the parents cannot come to terms, the mother is to have final authority on major decisions. Additionally, the order states the father is to have nine consecutive days of parenting time with the child over the holidays, with the mother having the remaining parenting time. Travel time is addressed in the order, which says the child shall be permitted to travel outside of Canada with either parent unless the other has a reasonable objection.
Father says it is in the child’s best interest to travel
The father’s request to allow the daughter to travel to Greece is rooted in his desire to allow the child to spend time with his immediate and extended family in his home country of Greece. He told the court his request does not include extending his parenting time, and that it would be enjoyable for the child to be able to travel after going through years of travel restrictions. He added that he has followed all of the travel requirements of the order related to his divorce and that the wife’s refusal to accommodate his request comes from her desire to punish him.
The mother’s concerns are mostly rooted in concerns related to COVID-19. She told the court her initial refusal was related to uncertainty in the wake of the Omicron variation of COVID-19. She also said that the child is not fully vaccinated, and is therefore at a greater risk of getting COVID-19. The mother also pointed out that the father had taken the daughter to get her first dose of the vaccine despite not having the mother’s approval because their family doctor advised them to wait. There is currently a contempt motion scheduled to resolve this breach of the final order.
The mother also told the court the father does not take COVID-19 safety measures seriously, pointing out that he failed to quarantine for two weeks before picking the child up for a weekend in April 2020 despite telling the courts that he had. The father was fined $1,000 for the breach.
Finally, the mother told the court she accepts that it is important for the father to spend time with the child, but suggested it is more appropriate for him to do so within Canada.
The only consideration is the best interests of the child
The only factor relevant to determining issues related to parenting time is that of the best interest of the child. The Divorce Act states the factors that must be determined include the safety, security and well-being of the child and any civil or criminal orders related to such.
In applying the best interests of the child to the matters before it, the court noted the mother was not trying to prevent parenting time between the father and the child. Instead, she had simply asked for it to be held in Canada.
The court also highlighted the risks associated with international travel while in the midst of a COVID-19 outbreak. In noting that the child is not fully vaccinated, travel through multiple airports and to a foreign country is bound to increase her opportunities to contract COVID-19. If that were to happen, the child would be forced to quarantine, causing her to miss holiday parenting time with the mother.
It was the father’s decision to travel to Greece for the holidays when it would have been easy for him to have opted to exercise his parenting time in Toronto. Because of this decision, the court said that it then had to resolve the opposing health risks of travel to Greece against the benefits of a trip where she would spend time with members of her family who she doesn’t often see.
The court employed the details of the final order to make its decision, noting that the mother has decision-making responsibility for all decisions related to the child’s health and that the father’s conduct has breached the authority granted to her. As a result, the court told the father he could exercise his parenting time only if he chose to do so in New York or Toronto.
The family law team at Howie Johnson Barristers & Solicitors can help you with matters related to parenting time
With over 25 years of experience, the family law team at Howie Johnson Barristers & Solicitors knows the many issues that people going through divorce and separation have to work through. We advise clients on all matters of family law and help our clients best achieve a satisfactory resolution. If you have concerns related to parenting time and travel, please contact us online or by phone at 519-973-1500 to schedule an introductory consultation to see how we assist you.