Gelman & Associate's statement regarding COVID-19 - Read More

Many parties have struggled with pre-existing parenting arrangements during COVID-19. As demonstrated in this case that was recently before an Ontario court, the pandemic has brought with it a lot of uncertainty and has turned many people’s plans on their head.

The Original Parenting Order

The parties were married in July 2008 and divorced in February 2012 by order of the High Court of Justice in France.

The parties had one child, who was 10 years old. Since separation, the child’s primary residence had been with the mother.

In May 2016, the High Court of Justice in France granted the mother’s request for an order permitting her to move from France to Toronto (the Parenting Order). The father was granted parenting time during the child’s school breaks, which he was permitted to exercise in France.

When the COVID-19 pandemic hit, the mother became concerned about the child travelling to France to spend time with the father. As a result, she brought an urgent motion for an order requiring the father to exercise his parenting time in Toronto as long as the Government of Canada advisory against all non-essential international travel remained in effect. In the alternative, the mother sought to suspend the father’s parenting time for as long as the travel advisory remained in effect.

Court Finds it Has Jurisdiction Over Matter

Section 22(1)(a) of the Children’s Law Reform Act (the Act) provides that a court will exercise its jurisdiction to make an order for custody of or access to a child only when the child is “habitually resident in Ontario at the commencement of the application for the order.”

The Act goes on to outline that a child is “habitually resident” in the place where the child resided with both parents; where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

In this case, the court found that the child was habitually resident in Ontario, as she had been living in Ontario with the mother since 2016.

Furthermore, the court concluded that Ontario was the most appropriate forum. The mother and child had resided in Ontario for over four years, the mother previously brought an application in Ontario to change the child’s name and the evidence relevant to the dispute was mainly in Ontario. In addition, the court found that any unfairness to the father would be outweighed by the unfairness to the mother if she was forced to litigate in France.

Court Varies the Parenting Order

Section 42(1) of the Act allows the court to supersede an extra-provincial order regarding 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.”

In this case, the court found that the current COVID-19 pandemic constituted a “material change in circumstances” that had affected, or was likely to affect, the best interests of the child.

The court explained:

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.

The court went on to note that a Government of Canada advisory showed 19 international flights with confirmed COVID-19 cases since July 1, 2020, including an Air France flight from Paris.

In the end, the court found that it was not in the child’s best interests to travel to France during the pandemic, as the child’s health and safety could not be put at risk. The court therefore granted the mother’s motion and concluded that it would be appropriate to vary the Parenting Order on an interim, without prejudice basis.

Connect With Us

If you have questions about your rights, it is best to speak with a lawyer. At Gelman & Associates, we understand that this is an uncertain and stressful time. We remain open to help our clients, but are taking precautions to keep safety paramount. Our goal is to always empower clients to make informed decisions about their future. In addition to our firm’s separation and divorce handbook and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process.

In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online if you have a family law matter you need help with.