Court Rules that Mother Cannot Make Unilateral Decision to Travel To U.S. with Child During COVID-19 Pandemic
An Ontario court recently prohibited a mother from taking her daughter to the United States on vacation against the father’s wishes during the COVID-19 pandemic.
The parents were married and separated in November 2018. They have a five year old daughter. The parents did not have an agreement or court order governing decision-making or other parenting arrangements for the daughter.
The daughter resided primarily with her mother and spent alternate weekends with the father.
The mother was in a relationship with a resident of Texas in the United States.
On June 24, 2020, the mother informed the father by text that she was taking the daughter to San Antonio, Texas from July 6thto July 15th. The text message conversation, in part, read as follows:
“Father: I am her father. I make 50% of the decisions for her including the time she spends with me and you.
Father: You think this is a laughing matter
Mother: A judge will decide what is right for [the daughter]”
Five days later, the parents exchanged further text messages on the issue:
“Father: You have put [the daughter] in a very bad situation because of your personal needs.
Mother: lol. Well since it’s a pandemic I guess she’ll have to isolate with me until it’s over. Thank you goodbye. […] you are not her custodial parent. I make those decisions. All you’re doing right now is f****ing with [the daughter], like you do EVERY TIME she’s with you and EVERY TIME you call her. Which I have evidence of. I’d hate to be you. We’ll be issuing a court order for permission to travel. You wont have a say in this anymore. You and your lawyer are clearly just out for revenge. It’s very apparent. Your main concern isn’t [the daughter]. It’s ‘winning’. So good luck with that.”
The mother did not provide the father with any flight or accommodation details, nor did she provide him with evidence of travel medical insurance for the daughter.
The father sought a procedural order allowing the hearing of his motion on grounds of urgency and a substantive order prohibiting either party from travelling outside of Canada with the daughter.
Due to the urgency with which the matter was heard, the mother did not file any materials with the court.
At the outset, the court granted the hearing of the request, finding that the matter met the requirements of urgency.
Regarding the father’s substantive request for the prohibition of travel, the court stated:
“There is no governing document which provides Mother with sole decision-making. International travel is a major decision, unless otherwise specified in a Separation Agreement/Parenting Plan or Order. International travel removes the child from her place of habitual residence. It involves a myriad of attendant issues and decisions which cannot be said to be “day-to-day,” such as ensuring access to medical treatment and adjusting existing parenting schedules. […] International travel during a period of closed or uncertain border controls between a child’s habitual residence and the country being visited requires unequivocal agreement of both parents based upon a clear and collaborative plan. It is not a decision that can be unilaterally made by one parent over the other’s objections, particularly where all parenting issues are the subject of active litigation.”
The court observed that, at the time of the hearing, the Government of Canada’s Official Global Travel Advisory relating to COVID-19 remained in effect. The court stated:
“Particularly if you are a parent in a high-conflict custody case, now is not the time to attempt to vacation outside of Canada with a child.”
As a result, the court issued a temporary order that neither parent be permitted to remove the daughter from Canada without the written consent of the other or further order of the court. It also ordered that the daughter’s passport be deposited with the father’s counsel and that the passport could not be released except with the parents’ written consent or a court order.
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.