In a recent Ontario case, a court varied a parenting order issued by a French court to prevent a couple’s daughter from visiting her father in France during the COVID-19 pandemic.
Mother Seeks to Block Daughter’s Visit to Father in France
The parents married in July 2008 and have one daughter who is 10 years old. They were divorced in February 2012 by order of the High Court of Justice in France. Under the order, the daughter’s primary residence was with the mother, while the father was granted extended visitation and accommodation rights.
In May 2016, the High Court of Justice in France granted the mother’s request for an order permitting her to relocate from France to Toronto (the “Parenting Order”). The Parenting Order granted the father parenting time during the daughter’s school breaks, including the last six-weeks of her summer holiday, to be exercised in France, unless the father chose to exercise his parenting time in Toronto. The father’s appeal of the Parenting Order was denied by the Appellate Court of Paris.
As a result of the COVID-19 pandemic, the mother had concerns about the daughter travelling to France to spend time with the father over the summer as she would normally do under the terms of the Parenting Order.
The mother therefore brought an urgent motion for interim relief requiring that the father exercise his parenting time with the daughter in Toronto, Ontario, for as long as the Government of Canada advisory against all non-essential international travel (the “Travel Advisory”) remained in effect. In the alternative, the mother requested an order suspending the father’s parenting time for as long as the Travel Advisory remained in effect, with reasonable make-up parenting time to be scheduled upon further agreement between the parties.
At the time of the hearing, the father had already contacted police services in France regarding the mother’s alleged non-compliance with the Parenting Order.
Court Does Not Permit Daughter to Travel to France
After deciding that it had jurisdiction to hear the case, the court turned to the main issue at hand: whether it should vary the Parenting Order.
The court began by explaining that under s. 42(1) of the Children’s Law Reform Act, a court maysupersede an extra-provincial order in respect of custody of 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 stated:
“I am satisfied that the current COVID-19 pandemic is a material change in circumstances that affects or is likely to affect the best interests of the child such that the Parenting Order should be varied on an interim, without prejudice basis.
At this time, given that the Travel Advisory remains in effect, travelling to France raises unacceptable risks to [the daughter]’s health and safety and is not in her best interests. It is worth noting that the Government of France continues to restrict entry into the country by foreigners. While this would not apply to [the daughter], who has French citizenship, it demonstrates that governments continue to place stringent limits on travel and entry to minimize the risk of spreading the virus.”
While the father had argued that precautionary measures, such as wearing a mask and social distancing, would protect the daughter from any risk during an international flight, the court did not find this to be a convincing argument, stating that the transmission of COVID-19 has proven difficult to control, including in settings where masks or other protective equipment are worn. The court stated that travelling to France on a commercial airline and transiting through airports would unnecessarily expose the daughter to the risk of infection.
Additionally, the court noted that the daughter would be forced to self-isolate for 14 days upon returning to Canada, which could impact her ability to attend school at the beginning of the school year.
Finally, the court rejected the father’s argument that the mother was using the pandemic as a pretext for keeping the daughter from him, finding that the mother has facilitated access in the past and stated that the father could have access over the summer if it was in Toronto. The mother had even offered to pay for the father’s travel costs.
Ultimately, the court found that it was not in the daughter’s best interests to travel to France during the pandemic, stating:
“In the current circumstances, where the COVID-19 pandemic continues and the Travel Advisory remains in place, [the daughter]’s health and safety cannot be put at risk. […] While I recognize that requiring that the [father] exercise his parenting time in Toronto is not ideal, it is the best interests of the child that govern.”
As a result, the court ordered that, on an interim and without prejudice basis, the father would have to exercise his parenting time in Toronto, Ontario as long as the Canadian Government’s Travel Advisory against all non-essential international travel remained in effect.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.