Court suspends requirement to travel during COVID even if access diminished

In the recent decision of Grieder v. Zabinski 2021 ONSC 3796, the Hon. Justice Charney of the Newmarket Superior Court considered whether the non-essential travel ban and quarantine requirements during Covid-19 constituted a material change in circumstances that affected the best interests of children and warranted varying terms of a final order.

Now, over a year into Covid-19, it is well established that courts in Ontario do not allow parents to suspend parenting time because of the pandemic. Cases such as Ribeiro v. Wright, 2020 ONSC 1829 made clear that existing court orders should be followed despite Covid-19. But this case posed a new challenge for the Court – how does the Court reconcile the principle of meaningful contact with both parents and Covid-19 travel restrictions?

The parents in this case had one child together. The Mother and child lived in Peterborough while the Father lived in Las Vegas. The parents had a very acrimonious separation that involved the Children’s Aid Society and allegations of family violence and drug abuse. The parents eventually entered into terms that were made into the Final Order of the Hon. Justice Hughes, dated May 13, 2019. The parents agreed that the child would continue to live with the Mother. However, the Father had parenting time for up to 96 hours per month.

The portion of the Final Order that became problematic was paragraph 8 which required the Mother to travel to Las Vegas with the child two times per year: once in either May or June and for a period that included American Thanksgiving. All expenses for travel were to be divided equally by the parents.

Once COVID 19 hit, the Mother brought a motion to suspend paragraph 8 of the Final Order. At that time, the Canadian federal government had imposed a non-essential travel ban that prevented people from travelling outside of Canada. There was also an Emergency Order under the Quarantine Act that required all travellers into Canada to:

  1. check into a government-authorized hotel for 3 nights;
  2. remain there until they received a negative Covid-19 test; and
  3. quarantine for a minimum of 14 days.

The United States also had similar conditions imposed by the Centres for Disease Control and Prevention (CDC) who advised all travellers into the United States to:

  1. get tested for Covid-19 within 3 to 5 days after travel; and
  2. for unvaccinated travellers to self-quarantine for 7 days even if they test negative for Covid-19.

In 2020, the Mother refused to travel to Las Vegas and she took the following positions at the returnable date of her motion.

  • She had not yet been vaccinated against Covid-19.
  • She was concerned about the health risks to both herself and the child.
  • The quarantine requirements for both countries would increase the cost of travel for her by at least $7,000.00 – $10,000.00.
  • She has another young child from another relationship and the quarantine period would interfere with her ability to care for that child.
  • The Father only travelled to Ontario for parenting time twice since Covid-19. He himself had cited the quarantine requirements and increased costs as his reasons for not coming every month as permitted by the Final Order.
  • The Mother feared for her personal safety and claimed that the Father had become increasingly abusive since the Final Order. He had actually been charged with criminal harassment and with the publication of intimate images without consent. The Father was subject to an undertaking not to contact the Mother except in accordance with a Family Court Order – which the Mother was concerned would not protect her in Las Vegas.

The Father opposed the Mother’s motion. According to the Father, he already received his first dose of the vaccine and he was convinced that it was safer for the child to be in Las Vegas than in Ontario. He believed that Covid-19 was “virtually over” and posed no safety risk to the child. He not only wanted the child to visit him per the Final Order, but he also wanted the child’s primary residence to be changed to Las Vegas.

Justice Charney who presided at this motion did not get on board with the Father’s proposed solution. Instead, Justice Charney explored other recent decisions in Ontario where courts have exercised caution and concern when it comes to potential health risks to children and the requirement that children quarantine upon return to Canada (Semkiw v. Sutherland, 2020 ONSC 7477Onuoha v. Onuoha, 2020 ONSC 1815Saini v. Tuli¸2021 ONSC 3413).

In another recent decision of Yohannes v. Boni, ONSC 4756, the Court suspended an order granting a Father, who lived in France, six weeks parenting time with his 10-year-old child in France.

This issue has made its way all the up to the Court of Appeals. In the decision, Bourke v. Davis, 2021 ONCA 97, the ONCA recognized that government travel restrictions can legitimately affect the ability of parents to follow parenting orders that contemplate international travel.

Justice Charney ultimately agreed with the Mother in this case. He found that travel to the United States was not essential nor in the best interests of the child. Paragraph 8 of the Final Order was temporarily suspended until the federal government repeals the travel advisory to avoid non-essential travel outside of Canada.

If you have a case involving travel during COVID 19, contact one of our lawyers at NuriLaw for further assistance 416-323-5092. We would be happy to help.