With separation comes the obvious, two separate households and children commuting between the two parents’ homes. Sometimes parents are conveniently located in the same neighborhood, while in other circumstances, parents are cities apart or even countries. Eventually the exchange becomes second nature and the parties and children adapt to the new schedule with minor modifications occurring to accommodate unforeseen circumstances. But how do parties conduct themselves in the current state of affairs with COVID-19 travel restrictions?
Well, in a judgment released June 9, 2020 in the case of Hasan v Hasan, 2020 BCSC 862, the Honourable Justice Shergill heard an Application for an Urgent Hearing which dealt with two of the parties children and the father’s trips to the United States in the midst of the Covid-19 pandemic. The year previous, the parties had entered into a Consent Order with a variety of terms. The Consent Order permitted travel outside of Canada with the other party providing travel authorization at least one week prior to travel. It provided that the parties would discuss significant decisions regarding health, education, religious instruction and general welfare of the children. In the event that the parties could not reach an agreement on a major decision the parties were obligated to mediate or participate in some form of dispute resolution process. The Consent Order also required that the parties attend mediation prior to applying to Court should any issues arise from the Consent Order.
Justice Shergill permitted the Claimant’s family law Urgent Hearing notwithstanding the requirement to first attempt mediation to resolve the dispute. The reason being that the decision to travel during the pandemic when the government advised against all non-essential travel concerned the children’s health and therefore is a major decision. The Respondent attempted to argue that the Claimant’s Application should not be heard because of the “mediate first” clause. But her Honour found that the Respondent could not rely a term of the Order for protection that he was also in clear violation of, that being the clauses to discuss major health concerns and receive a “consent to travel authorization form” from the other parent.
The starting presumption existing orders regarding parenting arrangements is that arrangements in a parenting order are in the best interest of the children. Where one party wishes to change a parenting order, they have to provide specific proof that the needs or circumstance of the child have changed since the making of the order. Therefore, the onus was on the Applicant to evidence that the “needs and circumstances” of the children have changed since the making of the order.
In this particular case, the Order which the Applicant sought to change was entered into in May of 2019 by consent of both parties. Covid-19 was declared a pandemic in March of 2020 and the government of Canada shortly after placed a 30-day restriction on all non-essential travel. The Respondent father had strong family ties in Virginia and had taken trips with the children even after the restrictions were put in place. So on the face of it, in March of 2020, one could certainly empathize with the mother’s anxiety around the trips to the neighbouring U.S. given the Covid-19 pandemic. Her Honour found on the facts that the non-essential international travel during the pandemic was not in the children’s best interest and continued trips would expose the children to unnecessary risks, whether international or domestic travel. Her Honour in fact found that the continued exposure to the children of travelling through airports or on airplanes to be reckless. As such, the evidence in fact supported that a “change in needs or circumstances” of the children had occurred and a variation of the Consent Order was necessary to protect the best interest of the children.
The remedy that achieved the delicate balancing act of protecting the children while also attempting to respect both parents desires was a travel restriction on international or domestic travel and a restriction on attending airports or being aboard airplanes without written consent from the other parent or a further court order.
This case illustrates the importance of clear cooperative communication between separating parents. Most times, common sense prevails but this is sometimes hard to do when one is in the thick of things.
The writer relied on the following case:
Hasan v Hasan,, 2020 BCSC 862