August 18, 2020

Father Wins Arbitration Battle to Travel with Children During COVID

Diana J Richmond

Planning a summer vacation for your children rarely includes going to arbitration but for one dad, that’s exactly what happened when planning a summer trip to the cottage.

Objecting to the children travelling by airplane in light of one of the children’s underlying health condition and elevated risk given the Covid-19 pandemic, one mom refused to grant permission to allow her children to travel with their father from Calgary to Ontario. As they could not come to an agreement, the matter was taken to arbitration.

In this case, the father won. This case was decided on many factors including:

  1. The Supreme Court of Canada in Young v Young [1993] 4SCR looked at the issues of parenting under Section 16 of the Divorce Act. The Court stipulates what it means to look at the best interests of the Child. In doing so, it was stated that the power of the custodial parent is not a right to benefit the parent but, rather, the Child has a right to a parent who will look after her best interests, and the parent has a duty to ensure, protect and promote the Child’s best interests. When determining the parenting of a Child, the adjudicator must look at the rights of the Child, not of the parents. In this case, much of the argument before the adjudicator was on who did what, or who did what better during the parents’ marriage and into separation. Young v Young goes on to state that child placement decisions should safeguard the Child’s need for continuity of relationship, reflect the Child’s (not the adult’s) sense of time, and take into account the law’s inability to supervise interpersonal relationships and the limit of knowledge to make long-range predictions. As Madam Justice L’Heureux-Dubé said, the custodial parent needs autonomy to raise the Children as he or she feels fit, without interference by the state or the non-custodial parent.
  2. The best interests of the child cannot be equated with the mere absence of harm: it encompasses a myriad of considerations. Courts must attempt to balance such considerations as the age, physical and emotional constitution and psychology of both the child and his or her parents and the particular milieu in which the child will live. One of the most significant factors in any cases will be the relationship that the child entertains with his or her parents.
  3. In the circumstances of this case, the health and safety of the children during the covid pandemic must be weighed with the benefits and the importance of extended family relationships and enjoyable family bonding time on holidays.

There are several other considerations in this decision that have been removed for client privacy.

Can you prevent your ex-spouse from taking your children traveling during Covid?

Yes. If you have a reasonable concern for their health and safety you can object to the travel plans of your ex-spouse and you may have a case to restrict their travel. However, the arbitrator or judge who reviews and decides on your case may not agree with you. If you’re unsure of your legal standing or need legal representation for your parental rights during Covid, contact us.

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