International travel during COVID-19 not in the children’s best interests

I was under the impression that international travel was a faint memory of a distant pre-COVID-19 past. Judging from the Court’s ruling in Hasan v. Hasan, 2020 BCSC 862, I was both naïve and mistaken.

Hasan is one of the recent cases issued through the Supreme Court’s “urgent hearing” process (see below).

In Hasan, the parents shared parenting time of three children pursuant to a consent order. Either party could travel with the children outside of Canada, but the travelling party needed to provide a full itinerary respecting the travel at least one week ahead of time.

The father took the children to Virginia in the United States (where the father had family) repeatedly during the outbreak. On March 11, 2020, he told the mother that he would be taking the children to Virginia the next day (on March 12, 2020). This was much less notice than required by their consent order, and the mother did not consent to the travel. The respondent took the children anyway, returning on March 22, 2020.

The father took the children to Virginia again on May 13, 2020, having given notice to the mother on May 5. The mother again told the father she did not consent to this travel, yet  again, the father took the children anyway. The mother accordingly brought an application to have the children returned to Canada.

The Court found without much difficulty that the father taking the children across international borders put the children at real risk of harm. The government prohibition on non-essential travel, the closing of the US-Canada border, and the required 14-day isolation period on return to Canada all demonstrated the seriousness of the concern. While the father said he had taken various precautions during the travel, the court was not persuaded that this was enough.

“The restriction against non-essential travel does not indicate that non-essential travel is acceptable if the necessary precautions are taken,” the judge wrote.

The father then took the position that if COVID-19 posed a real threat to the children, the government should not have allowed him to travel with them to Virginia. This attempt to deflect responsibility for looking after the interests of the children flew “in the face of the duty he has as a parent and a guardian,” the Court said.

Next, the father argued that an order requiring him to return the children to Canada demonstrated that travel did not expose the children to any risk of harm, because any order requiring him to return them would necessarily require them to travel. The court found that a return of the children to their homes in B.C., where their parents lived and where they were schooled, was far preferable to leaving them in Virginia. The father could not rely on his own poor conduct in order to trap the children in Virginia.

Finally, the Court made the following comment that any parent considering a non-essential trip should bear in mind:

“I view any non-essential international travel during the current pandemic to be against the children’s best interests. Continuing to expose the children to unnecessary risks created by international travel, or even domestic travel which requires traveling through airports and on airplanes, is reckless.”

The Court closed by ordering the father to pay costs to the mother. The Court declined to order special costs, although judging from the tenor of the ruling this may have been a close call.

About urgent hearings

Hasan was heard under the Courts’ “urgent hearing” process. This process involves an applicant submitting draft application materials to the Court along with an electronic form asking for an urgent hearing. A judge reviews the email and draft materials, and makes an initial determination of whether or not the matter is “urgent” such that it warrants a hearing notwithstanding any COVID-19 restrictions that may be in place. If the judge decides the matter is urgent, he or she will typically give directions on when and how the application will be heard (usually by telephone). If the judge decides the matter is not urgent, the application is relegated to whatever other process might be available at the time (e.g., application in writing or, as of June 8, 2020, a regular chambers appearance by telephone).

As the courts return to normalcy, the “urgent hearing” process may fade into the background. That would be a shame, as it represents a streamlined and efficient alternative to the “short leave” application system that existed before the COVID-19 outbreak. And it enables cases like Hasan to be dealt with easily and quickly.

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About Alex Boland

Partner – Kelowna

Every life contains great transitions. I hope to help my clients through their separation with compassion, integrity, intelligence and dignity. I try and see each file on its own merits, and this means that I want to work with my clients to develop an approach that moves them forward towards their particular goals. Practically speaking, I prefer to take a collaborative approach to files where possible; I like to apply the specialized knowledge and competencies I've developed over my practice to challenging problems; and I like to exercise compassion in all that I do.