Over the course of this past summer, Ontario courts have faced numerous cases of parents attempting to take their children on vacation against the objections of their ex-spouses, as we have written about here and here.

An Ontario court recently encountered yet another such case, when a mother brought a motion to allow her to bring her children to Texas against their father’s objection.

Mother Moves to Texas During COVID-19 Pandemic

The parents were married on July 8, 2006, separated on January 1, 2018 and divorced on April 18, 2019. They have three children who were born in Canada: seven-year-old twins and a third child who is four. 

The parents signed a separation agreement on October 1, 2018, under which they had joint custody of the children and equal parenting time. As well, they each agreed to maintain a permanent residence for the children in Toronto for seven years, until October 1, 2025. Additionally, the agreement set out a summer parenting schedule, in which the children would reside with the mother for five weeks and with the father for four weeks.

On December 6, 2019, the mother issued an application to the court, seeking an order for sole custody of the children and an order allowing her to move the children’s permanent residence to Argyle, Texas where she and her new husband had purchased a home. 

The mother and her new husband planned to move to Texas on June 29, 2020, where the mother would give birth to a child in August. She had ceased to own or rent a home in Toronto. 

However, the applications had not yet been heard when the mother brought an urgent motion for an order allowing the parents’ three children to travel to Texas between July 16, 2020 and August 17, 2020. The mother wanted to spend her residential summer time with the children in Texas. Additionally, the mother argued that the children would be safer in Argyle, Texas because it was a rural area. She added that the children would not have to quarantine on arrival in Texas and they would enjoy the expansive home and pool.

In response, the father sought an order that the children not be permitted to travel to the United States until such time as the  global health pandemic had been lifted and the Government of Canada had endorsed and legally permitted the non-essential  cross-border  travel  of Canadian citizens to the United States. He also sought an order setting the summer schedule for the children in Canada.

The parents’ motions were heard on June 23, 2020.

Court Refuses Mother’s Request

The court began by taking judicial notice of official COVID-19 pandemic information, which showed that the Canada-U.S. border remained closed and that the U.S. Centers for Disease Control and Prevention had stated that Texas was among the states with the highest number of COVID-19 cases. 

The court then commented on the mother’s behaviour by stating:

“If there is an urgency to the mother’s motion, she is responsible for making it so. [..]

The mother’s conduct reveals a complete disregard for the Separation Agreement that is binding on the parties. By moving to Texas, she has breached the agreement to remain in Toronto for a period of 7 years. In her May 14, 2020 email, she told the father that the children would live primarily with her in Texas through school year, where they would attend school. Her conduct has caused this summer parenting dispute. […]

The father has good reason to be concerned that the mother will not return the children to Toronto when her summer weeks are over. The father is understandably concerned about the mother’s intentions. He fears that she will use the COVID-19 pandemic as an excuse not to return the children to Toronto.”

While the court acknowledged the principle of maximum contact as well as the fact that the children had travelled to Texas with the mother in the past and enjoyed their time there, the court found that current decisions about the children’s travel had to take into consideration the COVID-19 pandemic. 

The court stated that while the mother had chosen to move to Texas and give birth there, she was not entitled to have her other children join her in Texas during the pandemic. The court found that the proposed travel was non-essential and would recklessly expose the children to the risk of infection, which would not be in the best interests of the children.

As a result, the court dismissed the mother’s motion and ordered that during her 2020 summer weeks, the mother could not remove the children from Canada. The court further ordered that if the mother chose not to return to Toronto, the children would reside with the father during the mother’s summer weeks.

Get Advice 

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.