Court Orders Immediate Return of 16-year Old Son to Canada Amid Covid-19 Concerns

In these extraordinary times, courts have already begun to see cases relating to concerns over the Covid-19 pandemic. In a recent Ontario family law case, the court heard an emergency motion from a father for the return of his son, who had been living in the United States, to Canada.

What Happened?

The parents had placed their now 16-year old son in the US state of Utah on the day prior to his 16^thbirthday in October of 2019. The son was enrolled in an education and therapeutic program in Utah.

The parents share joint custody of their son and his two siblings. Their custody arrangement was set out in a separation agreement in 2004.

The father brought an emergency motion to the court, which was heard on March 18^th, 2020, asking for the immediate return of the son to Canada. The urgency of the matter was predicated upon the impact of the Covid-19 pandemic virus and the recent announcements by Prime Minister Trudeau and President Trump of the imminent closure of the border shared by Canada and the United States. 

The father alleged that he and the mother had worked out an arrangement the week before by which she agreed to the son returning to Canada subject to her assuming sole decision-making on health and education issues. The father stated at the time that his agreement to this arrangement was “under protest and duress”. The mother stated that the arrangement was entered into without the benefit of independent legal advice. 

Decision

The court began by noting the extraordinary circumstances of the case, stating:

“The competing affidavits raise issues that would be important in normal times. Unfortunately, these are not normal times. […]

Interesting arguments in normal times. Again, these are not normal times. […]

The situation is changing as we speak. When this Motion was served, we had open borders and they are about to be closed. Just prior to the Motion, there was an earthquake in Utah that is interfering in air traffic. No one knows what tomorrow will bring.”

The court explained that while the son’s situation required determination by the parents, because the son was 16 years old, he was also entitled to participate in the proceedings.

As with most family law issues pertaining to children, the court considered whether the son’s return to Canada was in his best interests. The court concluded:

“Given the current health concerns facing all of us, the imminent closure of the border between Canada and the United States and the recommendations of our health professionals and Government authorities regarding Canadian citizens out of the country, the relief requested by the [father] is granted in its entirety.”

As a result, the court granted the father’s request that the son immediately return to Canada. The court also ordered the mother to return the son’s passport to the father, which she had taken without notice or consent of the father. 

The court then ordered that, upon the son’s return, he must be self-quarantined for no less than 14 days subject to any further medical recommendations in the event the son tested positive for the coronavirus. The court ordered the son to live with the father during his self-quarantine. 

Get Advice

Separation and divorce are challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.