Ontario Court Overrides French Order: Child Prohibited from Travelling to France to Visit FatherYohannes v. Boni, 2020 ONSC 4756 (CanLII)
The mother and father were married in 2008, and have a child together who is now 10 years old. They were divorced in France in 2012, with the child having primary residence with the mother. The father had extended visitation rights.
In May 2016 the court in France granted the mother’s request to move with the child to Toronto, under a Parenting Order. The mother had remarried and has two other children, and the child was living with them in Toronto. The father’s visitation rights were adjusted so that he could exercise them in France during the child’s school breaks and summer holidays, with the child travelling to that country to make it possible.
Under the Parenting Order the child was scheduled to travel to France soon, to spend time with the father. However, due to the COVID-19 pandemic, the mother was currently concerned about the child making that trip. The mother brought an urgent motion, requiring the father to exercise his parenting time with the child in Toronto instead of France, for as long as the Canadian Government advisory against all non-essential international travel (the “Travel Advisory”) remains in effect.
First, the court addressed the matter of its own jurisdiction to make the order. Under the Children’s Law Reform Act, it had authority to make an order for custody or access if the child is “habitually resident” in Ontario, which since 2016 the child had been. Moreover, the Parenting Order made in France qualified as an “order” that was enforceable here in Ontario.
The next question was whether the Ontario court had the power to supersede the Parenting Order made in France. The test in Ontario was that the court was “satisfied there has been a material change in circumstances that affects or is likely to affect the best interests” of the child who was habitually resident in Ontario when the application started.
Again, the court was satisfied that the current COVID-19 pandemic satisfied that test. It ordered that the French-issued Parenting Order could be varied on an interim basis. The court said:
At this time, given that the Travel Advisory remains in effect, travelling to France raises unacceptable risks to [the child’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 child], 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.
If she were to travel to France, [the child] would be taking a lengthy flight, unaccompanied, on a commercial airline. The [mother] was unable to obtain assurances of any additional measures in relation to unaccompanied minors on either Air France or Air Canada. The [mother’s] evidence is that on Air France, only children over 11 years of age are required to wear masks.
The [father] submits that precautionary measures, such as wearing a mask and social distancing, would protect [the child] from any risk during an international flight. However, this is far from certain. 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. Moreover, the transmission of COVID-19 has proven difficult to control, including in settings where masks or other protective equipment are worn. Travelling to France on a commercial airline and transiting through airports would unnecessarily expose [the child] to the risk of infection.
While both parties agree that [the child] is a capable and responsible child, it is not reasonable to expect that a child her age would be able to take all the necessary measures over such a lengthy period of travel time. In addition, the [mother] has verified with her employer that [the child] would not be covered by her employee health benefits plan while in France. She would also have 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.
The court also rejected the father’s claims that the mother was using the pandemic as a pretext for keeping the child from him. The mother had been cooperative in facilitating access on numerous occasions in the past, and had offered to pay the cost of the father’s travel to Toronto if he wished to exercise access here. The court also noted that its temporary ruling was not intended to minimize the importance of the relationship between the child and the father’s extended family in France. The court added:
In the current circumstances, where the COVID-19 pandemic continues and the Travel Advisory remains in place, [the child’s] health and safety cannot be put at risk. When I inquired about whether the [father] is able to travel to Canada, he advised that he is applying for a passport but will not receive it for approximately three weeks. He will be required to self-isolate for two weeks upon arriving. In addition, while he had been working from home until May 2020, he will be required to return to his workplace in early September 2020. 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.
I expect that the parties will continue to cooperate to facilitate access by the [father] through telephone and video calls with [the child] and, in the event that the [father] travels to Toronto, to ensure reasonable make-up time for lost parenting time.
For the full text of the decision, see:
Yohannes v. Boni, 2020 ONSC 4756