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Due to COVID-19, the notion of international travel is something many people haven’t considered doing for the last six months. However, there are many people for whom international travel is an important part of their lives. While some people are required to travel for work, others might have immediate family members spread out across the globe. For separated or divorced people who live in different countries, COVID-19 means that one parent can’t see their child. This is the situation that was faced by two parents who recently appeared before the Ontario Superior Court of Justice.
Parents living on different continents
The parents were married in 2008 and had one child together before separating. The child is now ten years old. The parents were divorced in 2012 while living in France. The child’s primary residence was with the mother, while the father was granted extended visitation and accommodation rights.
In 2016 the mother was granted a request to move from France to Toronto. The parenting order that allowed her to do so granted the father parenting time during the child’s school breaks as well as the last six weeks of the summer holiday. The father’s parenting time was to be exercised in France unless he chose to visit in Toronto. The father appealed the order but his appeal was not successful.
The mother moved to Toronto with the child in May 2016 where they live with the mother’s new partner and their two other children.
COVID-19 makes father’s access difficult
As summer approached, so did the child’s scheduled visit with the father. The mother was worried about the safety of her child as it related to air travel during COVID-19. She asked the court to require the father to spend his parenting time in Toronto rather than in France. If he did not want to travel to Toronto, she asked in the alternative that the scheduled visit be rescheduled.
Where should we consider the child’s home to be?
According to the Children’s Law Reform Act, a court is only able to exercise its jurisdiction to make an order for custody or of access to a child where the child is “habitually resident in Ontario at the commencement of the application for the order.”
The question of habitual residence is determined by establishing a place where the child most recently lived that fits one of the following criteria:
(a) with both parents;
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
(c) with a person other than a parent on a permanent basis for a significant period of time,
The court found that the child is habitually resident in Toronto, allowing the court to exercise jurisdiction as it relates to the parenting order.
Should the father’s access be delayed or made to occur in Ontario?
The court turned once again to the CLRA to determine whether it could vary the order. The act states a court may supersede an extra-provincial order in respect of custody or access to 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 was satisfied that the COVID-19 pandemic represents a material change in circumstances and that having the child travel to France represents an unacceptable risk to the child’s health. Even with the father’s suggestion that the child social distance and wear a mask, the court was not convinced she would, or could, do everything needed to reduce the risk of COVID-19.
The court directed the parties to work out a new access plan, which would either include the father traveling to Toronto, or delaying the access time.
Johnson Miller Family Lawyers has been a fixture of the family law community of Windsor and Essex County for over 25 years. In this time we have worked with countless clients on any number of family law issues. Call us at 519-973-1500 or reach us online to see how we can assist you and your family today.
