COVID-19 foils international custody sharing in family law case

Letting a child travel unaccompanied to a different country to exercise parenting time can expose the child to unacceptable health and safety risks amid the COVID-pandemic, an Ontario court has found.

In Yohannes v. Boni, 2020 ONSC 4756, a 10-year-old child had relocated from France to Toronto, where she lived with her mother following her parents’ divorce. The divorce order granted the father, residing in France, extended visitation and accommodation rights, while a parenting order provided that the daughter would travel to France to spend a portion of her summer vacation with her father, unless the father opted to exercise his parenting time in Toronto.

Following the COVID-19 outbreak, the mother brought an urgent motion for interim relief, contending that, while the federal government advisory against all non-essential international travel remains effective, the father should exercise his parenting time in Toronto or should have his parenting time suspended, subject to reasonable make-up parenting time later on.

The Ontario Superior Court of Justice first discussed whether it had jurisdiction over the case. Citing several provisions from the Children’s Law Reform Act, R.S.O. 1990, c. C.12, including s. 22(1)(a), s. 22(2), s. 41(1), s. 41(2) and s. 42(2), the court found that the child had habitually resided in Ontario for over four years and that the father had failed to show any unfairness which would amount to Ontario being declared forum non conveniens. Ontario was also the forum where the mother had previously filed an application to change the child’s name and where most of the relevant evidence could be found.

The court ultimately granted the mother’s urgent motion and decided to vary the parenting order on an interim and without prejudice basis, to the effect that the father should exercise his parenting time in Ontario while the travel advisory remains effective.

The court found that the COVID-19 pandemic constituted a material change in circumstances that affected the best interests of the child, which would allow the court to supersede an extra-provincial order relating to custody or access, pursuant to s. 42(1) of the Children’s Law Reform Act.

While the travel advisory is effective, the child faces unacceptable risks to her health and safety if she travels alone to France via a lengthy flight on a commercial airline and if she transits through airports, the court said. The court noted that France also has travel restrictions in place seeking to minimize the spread of the COVID-19 virus.

Even if the child, who is dubbed capable and responsible by both of her parents, wears a mask and practises physical distancing measures during the flight, she still risks being infected with the COVID-19 virus, which has a transmission rate which is difficult to control, the court said. “A Government of Canada advisory shows 19 international flights with confirmed COVID-19 cases since July 1, 2020, including an Air France flight from Paris,” said the court.

The child would also have to self-isolate for 14 days upon her return to Canada, which may affect her schooling. For all these reasons, the court found that travel to France in these circumstances was not in the child’s best interests.

While the court recognized the importance of the child’s relationships with her father and with her family in France, the court said that the “global pandemic is an unprecedented event that has unfortunately compounded the difficulty that arises from the Respondent and Selyana living in different countries.”

Yohannes v. Boni demonstrates how parenting time and international access are affected by the COVID-19 crisis, said a blog post by Toronto-based firm NULaw which discussed the case.