In a recent British Columbia decision, a court ruled that a child living with his mother in the United States would not be permitted to travel to Canada to see his father due to the COVID-19 pandemic; rather, the father would be required to travel to the United States to exercise his parenting time.
The parents have one child together, born in 2008.
In a previous court hearing, the mother made an application for an order permitting her to relocate with the child to North Carolina. Rather than making an order permitting relocation, the judge made an interim order permitting the mother to exercise her parenting time in North Carolina and providing that the father exercise his parenting time in British Columbia, where the parties and the child had been living.
Under the terms of the interim order, the father was to have parenting time for one week during Christmas break, two weeks at spring break and either one eight-week block or two blocks totalling eight weeks during the summer break. The father was also to have four or five consecutive days of parenting time at American Thanksgiving. The judge ordered the matter to be reviewed in one year.
The mother moved to North Carolina and the child began living with her there in January 2020. The father did not exercise his parenting time at spring break, he said, because he had concerns about travel in light of the “new and developing circumstance of COVID-19”.
The father lives with his partner in a First Nations territory in British Columbia. As a result of the COVID-19 pandemic, the territory had demanded that non-essential travellers stay away from the territory; it had posted an Information Bulletin on its Facebook page that the territory was closed and that all non-essential travellers were trespassers and that all arrivals must quarantine for 14 days.
The mother made an application to vary the interim order to provide that the father’s parenting time take place in Pennsylvania or such location on the east coast of the United States as determined by the court or as agreed by the parties.
She also sought orders that the father self-isolate for 14 days in advance of exercising his parenting time and that he abide by all recommendations issued by the United States Centre for Disease Control regarding the prevention of contracting COVID-19.
Positions of the Parties
The mother submitted that it was not in the child’s best interests to travel to Canada as that travel would elevate his risk of being exposed to and of contracting COVID-19 and would involve multiple flights. Additionally, the child would be required to self-isolate both upon his arrival to Canada and upon his return to the United States. She submitted that the father, as an American citizen, could travel to the United States and exercise his parenting time there. Finally, the mother was concerned that the father’s territory might not allow the father and child to enter because they were under lock down.
The father submitted that any risk to the child of travelling with him to and from the territory was minimal, especially in view of the risk to the child of not having time with him otherwise. The father also proposed a travel plan that would minimize the number of flights the child would be required to take. The father also argued that the COVID-19 crisis did not justify a denial of parenting time or travel to a child’s primary residence.
The court began by explaining that any decision involving a child must be made in the child’s best interest.
While the father had submitted recent family law decisions addressing access issues during the COVID-19 pandemic that supported his position, the court found that those decisions were distinguishable because they did not involve international travel by a child. The court stated:
“The Canadian government has recently extended the closure of the Canada-U.S. border to June 21st except for essential travel. That, in my view, is an indication that the federal health authorities consider that international travel increases the risk of the spread of the virus. Many provinces in Canada are restricting, or at least discouraging, travel from other Provinces of Canada and many First Nations, including the [the father’s territory], are restricting access to their territories to prevent the influx of the virus.”
Ultimately, the court found that the risk of travel to the child, given the need for him to fly across the continent twice and travel through three international airports outweighed the concerns that would arise if the father were to exercise his parenting time in the eastern United States. Though the court acknowledged that its decision would result in cost and inconvenience to the father, the court stated that while it was unfortunate, it was unavoidable.
As a result, the court ordered that the father’s parenting time during the summer of 2020 would occur in the state of Pennsylvania or such other States along the East Coast of the United States as agreed by the parents. It also ordered that the father would have to comply with all public health directives regarding self-isolation and the prevention of contracting COVID-19 during his parenting time.
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