Omicron trumps court order for separated parents in Christmas travel dispute

Issues related to the Omicron variant are already making their way into Canada’s family courts, where a judge last week blocked a separated father from taking his daughter overseas for Christmas, arguing that potential exposure to the surging variant was not in the child’s best interest.

Issues related to the Omicron variant are already making their way into Canada’s family courts, where a judge last week blocked a separated father from taking his daughter overseas for Christmas, arguing that potential exposure to the surging variant was not in the child’s best interest.

The background of the case was relatively straightforward. The daughter resides with her mother in Toronto, while the father resides in New York and maintains a home in Toronto. Following the parents’ separation in 2011, they had agreed on a regular and holiday parenting schedule, which was incorporated into a court order in 2014. As part of the agreed upon schedule, the daughter was to be in the father’s care for nine consecutive overnights during the Christmas school vacation. It is during that time the father wanted to travel to Greece.

Given the bi-national nature of the parents’ residence, the court order stated that either parent could travel outside of Canada with their daughter. To facilitate international travel, the court order required the non-travelling parent to sign a travel consent letter. The mother refused to provide the requisite consent for the purpose of the trip to Greece.

Justice Kraft was asked to decide if, in the face of a court order which specifically permitted international travel, the father should be allowed to travel to Greece with the daughter.

Justice Kraft’s first concern for safety arose due to the mode of travel. According to her ruling, the father’s plan was to “retrieve the child from Toronto; travel with her to New York; and then fly from New York to Greece.” Justice Kraft noted the child “will be exposed potentially either to one short flight from Toronto to New York, and one (or more) long-haul international flights from New York to Greece, potentially with a layover, making it extremely difficult, if not impossible, for the child to wear an N95-grade mask for a flight that exceeds 10 hours.” According to Justice Kraft, the travel “will result in the child also experiencing long-wait times in crowded airports during the busiest travel season.”

The second safety concern related to the father’s decision to stay in a hotel while in Greece.

“There will still be strangers using the elevators; strangers coming in and out of the hotel lobby; and strangers dining in the hotel restaurants, many of whom the child will be exposed to, as a result,” she wrote.

Justice Kraft acknowledged that, despite the COVID-19 pandemic, there is a presumption that parents ought to follow existing parenting orders.

However, the analysis does not, and cannot, stop there since doing so may lose sight of a child’s best interests, which are always paramount in parenting matters. Justice Kraft noted that existing parenting orders may need to be modified “to ensure that all COVID-19 precautions are adhered to and no matter how difficult the challenge, for the sake of the child, we have to find ways to maintain important parental relationships safely.”

In this case, Justice Kraft refused to permit the child to travel to Greece, finding that international travel during the Omicron surge amounted to a situation requiring a modification.

This father’s historic conduct in parenting matters related to the pandemic bolstered Justice Kraft’s decision. In the spring of 2021, the father had entered Canada and picked the daughter up on the same day of his entry despite his obligation to quarantine for two weeks. Not only was the father fined $1,000 for failing to comply with Ontario’s Quarantine Act, but he also swore a false affidavit and filed it with the court in support of his request for parenting time with the daughter, which was granted. Further, the father unilaterally caused the daughter to receive her first vaccination, contrary to the advice of the child’s pediatrician and without obtaining the mother’s consent.

According to Justice Kraft, the father’s conduct “demonstrates that he is unable to place the child’s needs and best interests ahead of his own need to secure his own plans. This prioritizing of his own interests affects his ability to care for and meet the child’s needs.”

Since the onset of the pandemic, family courts across Canada have been dealing with myriad issues related to COVID. These issues include limitations on parenting time, travel restrictions, vaccination and changes to support owing to reductions in income.

A parent’s plans must always yield to the best interests of the child, especially during a global pandemic with new variants, like Omicron, creating great uncertainty.