In the recent BC Provincial Court decision of C.M.J.G v. M.M.C., 2022 BCPC 3 (January 7, 2022), the Honorable Judge Brecknell in Prince George has declined to confirm or deny a mother’s request for a court order approving her plans to travel to Jamaica with her child. The child’s father had objected to the trip due to COVID-19 risks, and the court’s decision not to intervene essentially gives the father veto power over the mother’s proposed travel plans for the child.

This case suggests that —

• the ability of children to travel during the COVID-19 pandemic is a discretionary matter for guardians, and, more importantly,
• courts will decline to assist guardians in reaching an agreement over such childcare matters. Despite government advisories that individuals should avoid “non-essential travel,” the court, in this case, is saying that guardians can decide what is “essential” or “non-essential” for their child and that courts will not intervene if they can’t agree.

As such, this decision sets a scary precedent for parents and guardians who don’t always see eye to eye and may want to seek guidance from courts. It suggests instead that counselors, parenting coordinators, and parenting coaches may sometimes provide a more effective means of reaching resolution in the best interests of the child.

Case Background

On December 7, 2021, the Mother brought an Application About a Priority Parenting Matter (the “Application”) concerning the Child’s passport application and her proposed out-of-country travel with the Child.

Specifically, the Mother wanted to travel to Jamaica with the Child and various family members for a vacation from January 21 – 30, 2022. In order for the trip to proceed, the Mother needed the Father to provide permission for the child’s passport and a travel consent letter. However, the Father opposed the trip and refused to provide the consent letter but ultimately provided permission for the Child’s passport in advance of the hearing.

The evidence before the court showed that the Child’s maternal grandfather (the “Grandfather”) is terminally ill, and that the Mother’s family had planned a trip to gather everyone together before the Grandfather’s illness took hold. The Mother submitted that the Court order should be granted because it was important for the Child to spend time with their Grandfather and family before the Grandfather’s death. On the other hand, the Father opposed the trip, primarily because of his concerns about the Child’s possible exposure to COVID-19 and the requirement to quarantine upon return to Canada.

The Court’s Response

Judge Brecknell determined that the court could take judicial notice of government advisories regarding out-of-country travel in relation to COVID-19, and set out the substance of those advisories. He noted that, under the government advisories, it is up to individuals to determine what is “non-essential travel”, and stated that the Mother’s request must be considered in that light.

Moreover, Judge Brecknell suggested that what is “essential” or “non-essential travel” must be considered with respect to the best interests of the child at issue. He cited court decisions that hold that large family gatherings can be very important for and beneficial to a child’s development, and therefore are in the best interests of the child. On the other hand, Judge Brecknell then went on to cite more recent decisions in which courts have recognized the risks posed by exposing children to COVID-19.

Taking all of these factors into account, Judge Brecknell declined to make an order either confirming or denying the Mother’s request and declined to prohibit or approve the Child’s travel. Rather, he decided to leave the decision to the Father, as guardian, to determine whether he will complete the travel consent letter:

“If he does not wish to sign what is necessary for the Child to travel to Jamaica, that will be his prerogative. In doing so, he must consider only the Child’s best interests regarding not only this travel, but any future travels he may contemplate with the Child. He should inform [the Mother] of his decision immediately so that her planned trip to Kelowna to obtain the Child’s passport can be either confirmed or avoided.”

However, Judge Brecknell noted that if the Child does not travel to Jamaica, the parties should cooperate in taking all reasonable steps to ensure the Child has time with his Grandfather while he is still alive and well. While this arguably provides some guidance about what the parents should consider in making their decisions, it also suggests that the court is not an effective venue for reaching a resolution in the event of disagreement.