Court Cases & Orders

Family Courts Curtail Travel for Kids, Due to COVID-19

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Family Courts Curtail Travel for Kids, Due to COVID-19

As we move into what is widely being called the “second wave” of the COVID-19 pandemic, the courts continue to examine and rule upon various everyday issues that arise between separated and divorced parents in the context of their custody, access, and child support disputes.

One of these issues is whether it is appropriate for children to travel to other jurisdictions during the global health crisis.  Usually, the request is made by a non-custodial parent to have the child come visit him or her in another city or country; less commonly it may be proposed to allow the child to visit extended family members. Either way, the issue ends up before the court because one parent is not on-board with exposing the child to the inherent travel-related risks.

As with any legal issue that impacts children, the Family Courts are guided by the children’s best interests, as that is assessed by looking at all the circumstances.  This can include: the purpose and duration of the proposed trip; the health of the child and that of family members who might be involved (either at the point of origin or the destination); the impact of the post-trip isolation period;

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After surveying some of the recent rulings, it seems that Courts remain understandably reluctant to allow children to travel – Rick Pettica

and any Travel Advisories that might be in effect – among other factors.

After surveying some of the recent rulings, it seems that Courts remain understandably reluctant to allow children to travel.

For example, in Semkiw v. Sutherland, the court ruled that it was not in the children’s best interests to partake in non-essential travel to Texas during the pandemic to be with their mother, since it would recklessly expose them to the risk of infection.  In another case called Onuoha v. Onuoha, the court declared it would be “foolhardy” to expose the children to international travel in the face of a Travel Advisory, with the attendant restrictions and complications.

Similarly, in Yohannes v. Boni the court ruled that it was not in the child’s best interests to permit her to travel to France to visit her father. The court explained its reasoning in-depth:

…  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 took care to express its understanding of the broader implications of the ruling, from the standpoint of the father’s reduced parenting time:

My finding that it is not in [the child’s] best interests to travel to France during the pandemic does not in any way minimize the importance of the relationship between her and the [the father], or her time with him, her grandparents, and her extended family in France. The global pandemic is an unprecedented event that has unfortunately compounded the difficulty that arises from the [father] and [the child] living in different countries. In fact, [the child’s] time with the [father] in March 2020 was cut short when the Canadian government advised all Canadians travelling abroad to return to Canada.

But in the end, the court concluded:

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.  …

What’s the takeaway from these rulings?  Although they are certainly illustrative, they are not determinative; the outcome in any given case is will always vary according to court’s view of the facts.   Therefore, as the holiday season approaches, it’s best for parents to get the advice of an experienced Family Lawyer before booking that ticket.

For the full text of the decisions, see:

Semkiw v. Sutherland, 2020 ONSC 4088

Onuoha v. Onuoha, 2020 ONSC 1815

Yohannes v. Boni, 2020 ONSC 4756

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.