Travelling with children over Christmas during COVID-19: the likely view of the courts

December 17, 2020
Harp Basi

Christmas is a particularly hectic time of year for any family. For separated parents, it can be even more challenging as they try to create the best experience for their children who will be sharing time between two different households. Add a global pandemic, and that makes it even more difficult.

Parents may be tempted to keep their children with them rather than having their children travel to visit the other parent using COVID as an excuse. But can they?

If there is a court order in place which sets out the arrangements for the children, it is not automatically changed because of COVID. Parents must consider a balance between the advantages of allowing the children to visit the other parent and the COVID-related risks arising from the children travelling. If the children are travelling, both parents need to be aware of the quarantine rules, both at the child’s destination and  on the return home.

The key is always to act in the best interests of the children which means parents need to be reasonable and flexible. If one parent ends up with more parental time than normal, consider providing the other parent with more access through Skype, Zoom, Face Time or other communication tools to get through the holidays.

In four recent court decisions, the court made comments that while not directly applicable to holiday travel nevertheless illustrate the principles guiding the Court when deciding cases in the shadow of COVID-19:

In Hasan v. Hasan, 2020 BCSC 86 the father repeatedly took the child to the United States against the mother’s wishes and without her consent (see Alex Boland’s blog on that decision). The court noted that the government prohibition against non-essential international travel, the closing of the Canada-US border, and the requirement of a mandatory quarantine period of two weeks upon return from travel to the United States, were clear indications that the government and health authorities considered COVID sufficiently dangerous to require extreme measures.

In Amirzada v. Alemy, 2020 ONSC 1979, the Court refused the mother’s application to allow her to travel with her child from Ontario to Vancouver, noting that such travel was against the advice of public health experts. The Court determined that this interprovincial travel posed a threat to the child's health and created public health concerns.

In Onuoha v. Onuoha, 2020 ONSC 1815, the Court noted that it would be “foolhardy” to expose children to international travel given the evolving nature of international travel restrictions.

In S.B. v. M.P., 2020 BCPC 68, the Court concluded that lengthy international travel involving stopovers in American cities would unnecessarily risk the children’s health and would not be in their best interests.

At present, international travel is still advised against. Accordingly, there would have to be extremely good reasons before a Court would permit such travel, and it is unlikely that celebration of the holidays would  be such a reason. Travel within Canada remains somewhat harder to predict, but virtually all provinces are cautioning against travel between provinces  so a Court is unlikely to permit this kind of travel at present.

Stepping back, the Courts are usually prickly when asked to resolve “Christmas” parenting issues—expecting parents to deal reasonably with one another—and the impact of COVID-19 will likely only reinforce this reticence. In other words, when it comes to Christmas court appearances: litigants beware!

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Harp Basi
Harp Basi
Lawyer (Surrey)
Connect Family Law

Harp brings her volunteer work with children and her social work background, combined with more than 10 years experience in family law to Connect Family Law.