COVID 19 Child Parenting Time International Travel disputes often involve urgent applications by one party to stop such travel, or failing this happening, to demand the return of children unwisely or wrongfully removed from BC. In today’s blog, Lorne MacLean, QC summarizes the law and facts courts are looking at to determine what happens to child parenting time and international travel for separated spouse’s children during COVID 19. MacLean Law handles child parenting time and international travel cases and has the largest Mandarin and Cantonese fluent family law department in Western Canada.
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What happens when children are taken out of BC and one spouse wants them to come back but the other spouse then says international travel is unsafe ( after they already took them out of BC!) and they should remain removed from BC? COVID 19 Child Parenting Time International Travel disputes can be very stressful and there is an obvious concern that children could be at increased risk. In the recent BCSC decision by Justice Shergill in Hasan v. Hasan the Justice put restrictions on the removal of the children from BC after a father took the children to Virginia against the mother’s wishes. In her decision, she reviewed several factors and cases to guide family lawyers and their clients.
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[17] Although the parties did not refer to all the recent health guidelines and orders relating to COVID-19 from the provincial and federal governments, I find I am able to take judicial notice of these guidelines and orders: see R. v. Find, 2001 SCC 32 at para. 48; A.J.H. v. J.K.H., 2020 BCPC 74 at para. 48; and R. v. Morgan, 2020 ONCA 279 at para. 8.
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[30] There is a presumption that arrangements set forth in a parenting order are in the best interests of a child. However, the needs or circumstances of the child may change since the making of an order. As such, section 47 of the FLA permits this court to vary an order respecting parenting arrangements if satisfied that since the making of the order there has been a change in the needs or circumstances of the child.
[31] The order sought to be varied was entered into in May 2019. The global outbreak of novel coronavirus (COVID-19) was recognized as a pandemic in March 2020. Flowing from that, the British Columbia government and Canadian government made various orders in relation to international travel.
[32] Specifically, the government of Canada placed a 30-day restriction on all non-essential (discretionary) travel at the Canada-US border. Despite this, the respondent continued to travel with the children across a closed international border for travel that is not essential.
[33] The respondent argues that the claimant has not adduced evidence to show that the children are safer in this province than they are in Virginia, or that airline travel is dangerous for the children.
[34] It is not necessary for the applicant to provide specific proof of harm, in order for this court to determine that it would not be in the best interests of the children to permit the respondent to have unfettered permission to travel with the children. As held by the Court in Leveque v. Leveque (1983), 54 B.C.L.R. 164 (C.A.) [also known as L. (B.J.) v. L. (E.J.)] at para. 13:
…When the welfare of children is concerned, the question is not so much whether specific allegations of misconduct… have been proven, but whether on the whole of the evidence there arises a real risk to the children if access is given without protection against that risk.
[35] There is ample evidence that the respondent’s actions by travelling across international barriers during this pandemic have put the children at real risk of harm. The government prohibition against non-essential international travel, the closing of the Canada-US border, and the requirement of a mandatory quarantine period of two weeks when one returns from travel to the United States, are clear indication that the governmental and health authorities consider the coronavirus to be so dangerous that protection of the public requires these extreme measures be put into place.
[36] As noted by the Court in Morgan at para. 8, “…it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.”
[37] To the extent that it is necessary, I also take judicial notice of the fact that a variety of agencies and institutions, including the BC Supreme Court, have released well-publicized guidelines to address the risks posed by the ongoing COVID-19 pandemic. The global travel advisory issued by the Government of Canada advising against all non-essential travel outside of Canada, the fact that the RCMP and local police have been given powers to enforce the quarantine imposed by the federal government for people returning from international travel, and the extremely stiff penalties for breaking self isolation orders are all indicative of the seriousness of the potential risk of contracting or transmitting coronavirus.
[38] I note also that several recent decisions have commented on the risks involved in long-distance travel during the current pandemic, even where that travel is within Canada. In Amirzada v. Alemy, 2020 ONSC 1979, the Court refused the mother’s application to allow her to travel from Ontario to Vancouver, noting at para. 31(d) that such travel is against the advice of public health experts. The Court determined that this interprovincial travel both posed a threat to the children’s health and created public health concerns.
[39] In Onuoha v. Onuoha, 2020 ONSC 1815, the Court noted at para. 10 that it would be “foolhardy” to expose children to international travel given the evolving nature of international travel restrictions.
[40] In S.B. v. M.P., 2020 BCPC 68, the Court concluded at para. 36 that lengthy international travel involving stopovers in American cities would unnecessarily risk the children’s health and would not be in their best interests.
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After noting the children grew up in and had connections to Virginia the Court remained unimpressed by the children’s father’s reckless actions.
[47] I also reject the respondent’s suggestion that the current application is simply a tactic to interfere in his parenting time, as discussed in J.R.K.P. v. L.A.S., 2020 BCPC 73 at para. 6. To the contrary, it is clear that the mother’s application has been made with the best interests of the children in mind, and that it is the father who has “resorted to harmful gamesmanship” in his approach (Brazeau v. Lejambe, 2020 ONSC 3117 at para. 30).
[48] The rather cavalier attitude exhibited by the respondent in the events leading up to this application, as well as the unreasonable position taken by him during the application, are concerning. It was evident that the respondent had not considered, or did not care about, the fact that the mother would not be able to exercise her parenting time with the children when they were returned to her at 4:00 pm on May 26, because the children will be required to self-isolate for 14 days on their return. As the parties are currently on a two week-on, two week-off schedule, this would be the entirety of the claimant’s two-week parenting time with the children. This total disregard of the impact of his actions on the claimant’s parenting time is indefensible.
[49] As noted in Ribeiro at para. 14:
…in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk. (Emphasis added)
(see also Amirzada at paras. 27-30)
[50] While the actions of the respondent up to this point do not raise sufficient concern to justify a change in parental contact, I view any non-essential international travel during the current pandemic to be against the children’s best interests. Continuing to expose the children to unnecessary risks created by international travel, or even domestic travel which requires traveling through airports and on airplanes, is reckless.
[51] The evidence in this case is sufficient to establish that the respondent has exposed the children to unnecessary health risks by travelling across international barriers during this pandemic, and that there is a real risk that he will continue to do so, unless safeguards are put into place to protect against that risk.
Justice Shergill ordered that each party was prohibited from international travel with the children; and that each party is prohibited from domestic travel with the children by airplane.
If you have a COVID 19 Child Parenting Time International Travel disagreement, pick up the phone at 1 877 602 9900 and contact us by clicking here.
