C.M.J.G v. M.M.C., 2022 BCPC 3

Citation: C.M.J.G v. M.M.C. 2022 BCPC 3 Date: 20220107 File No: [omitted for publication] Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.M.J.G. APPLICANT AND: M.M.C. RESPONDENT ORAL DECISION RE APPLICATION OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Applicant: G. Petrisor, Q.C. Appearing on their own behalf: M.M.C. Place of Hearing: Prince George , B.C.

Date of Hearing: January 6, 2022 Date of Judgment: January 7, 2022 [ 1 ] THE COURT: I want to turn to the issue of the application brought by M.M.C. with regard to Jamaica. For the benefit of the parties, I have instructed the clerk that I am ordering an expedited transcript of my reasons because, as far as I could find, there are no decisions in British Columbia on the point since the advent of the Omicron virus. This is my decision. [ 2 ] C.M.J.G. and M.M.C. are the parents of J.C.G. born [omitted for publication], (the Child).

This decision resolves the Application About a Priority Parenting Matter filed by M.M.C. on December 7, 2021, concerning the Child's passport application, the cost of obtaining the passport, and increased costs for the proposed out-of-country travel with the Child. She wishes to travel with the Child to Jamaica with members of her immediate and extended family from January 21 through 30, 2022.

C.M.J.G. opposes the trip, but acknowledges through counsel that he will comply with any orders the Court may make. [ 3 ] In M.M.C.'s application, she alleges that there were impediments to her obtaining a passport for the Child caused by C.M.J.G., but the necessary documents are now signed and M.M.C. is poised to travel to Kelowna next week to get the Child's passport on an expedited basis.

In order to travel to Jamaica with the Child, she will also need a travel consent letter from C.M.J.G. or a Court order. [ 4 ] She has made a claim for a financial contribution from C.M.J.G. for the cost she will incur in getting a passport for the Child on a priority basis and the increased cost for flight and hotel reservations occasioned by a delay in making them due to the uncertainty on whether the trip would proceed. I will not deal with that issue in this decision.

That issue can be dealt with in a future appearance if necessary. [ 5 ] For the purposes of this decision, I make the following findings based on the documents and submissions provided by the parties: (

a) M.M.C.'s father, G.C. is gravely ill with a prognosis that is terminal in the foreseeable future; (

b) In November 2021, M.M.C., her siblings, and their families and some close family friends began planning a trip to an all-inclusive resort in Montego Bay, Jamaica, so that the family could gather with G.C. in his declining state; (

c) M.M.C. asked C.M.J.G. and his counsel to cooperate in obtaining a passport for the Child, but C.M.J.G. unreasonably delayed in addressing that request; and (

d) C.M.J.G. asked M.M.C. about the intended destination that required the Child's passport, but she did not provide him with that information until after a court appearance in December 2021. [ 6 ] M.M.C. submits the following in support of her request: (

a) It is important for the Child to be able to spend time with his grandfather, siblings, and extended family in light of G.C.’s health decline; (

b) She will take all the necessary precautions to address any COVID-19 issues; and (

c) She and her other children will not make the trip if the Child is not permitted to travel, although other family members will be travelling. [ 7 ] M.M.C. said she was unaware of the quarantine requirements for the Child as a non-vaccinated person upon his return to Canada. [ 8 ] C.M.J.G.'s submission in opposition to the proposed trip include: (

a) the federal government's travel advisory regarding the dangers from criminal elements in Jamaica. I will not address this submission other than to note that thousands of Canadians have safely travelled to Jamaica on vacation for many years; (

b) the federal government's travel advisory to avoid non-essential travel outside Canada issued on December 15, 2021, with regard to the Omicron variant of COVID-19; and (

c) the Child would be required to quarantine for up to 14 days upon his return to Canada. [ 9 ] The COVID-19 pandemic has affected the world since early 2020 with a variety of waves of illnesses due to different variants. In Hasan v. Hasan , 2020 BCSC 862 , the Court noted that it could take judicial notice of government health guidelines. I determine the same can apply to government advisories regarding out-of-country travel in relation to COVID-19. The Government of Canada's official website on COVID-19 addresses various travel health notices on a four-point continuum.

They include the following: Levels of risk Conditions in other countries may be different from those in Canada and may affect the health of Canadian travellers. For example: - standards of hygiene and sanitation may be different - safe food and clean water may be unavailable - climate or environmental conditions may support certain diseases that do not (or rarely) occur in Canada

The Public Health Agency of Canada (PHAC) actively seeks to identify and evaluate information about new, unusual or rapidly evolving health risks. When necessary, PHAC releases Travel Health Notices outlining the potential risks to Canadian travellers and to the Canadian public, and recommends measures that can be taken to help reduce these risks. Level 1 - Practise usual precautions Travel health notices advise practising usual travel health precautions.

For example, notices at this level may remind travellers about routine vaccinations, highlight the importance of hand washing, or recommend protective measures to avoid mosquito bites. Level 2 - Practise special precautions Travel health notices recommend that travellers practise special health precautions, such as receiving additional vaccinations. A notice at this level would be issued if there is an outbreak in a limited geographic location, a newly identified disease in the region or a change in the existing pattern of disease.

Level 3 - Avoid non-essential travel Travel health notices include a warning to avoid non-essential travel in order to protect the health of Canadian travellers and the Canadian public. The notice outlines specific precautions to take when visiting the region and what to do if you become ill during or after travel. A notice at this level would be issued during a large-scale outbreak in a large geographic area, or if there is increased risk to the traveller and an increased risk of spreading disease to other groups including the Canadian public.

Level 4 - Avoid all travel Advises travellers to avoid all travel in order to protect the health of the Canadian public. A notice at this level would be issued if there is a high risk of spread of disease to the general public regardless of measures taken while travelling. Avoiding travel will limit the spread of the disease in Canada and internationally. [ 10 ] On December 15, 2021, the Omicron variant was placed on Level 3 for all countries.

The government website says the following about Omicron: Note The Public Health Agency of Canada is advising travellers, regardless of their vaccination status, to avoid non-essential travel internationally. On November 26th, 2021, a new variant of the SARS-CoV-2 virus that causes COVID-19, Omicron, was designated a variant of concern by the World Health Organization. The Omicron variant is present in all continents, with community transmission of this [variant of concern] reported in some countries.

This variant has a large number of concerning mutations, with preliminary evidence suggesting a growth advantage over the Delta [variant of concern] and a potential decrease in vaccine protection against infection. The Government of Canada is closely monitoring the situation and working with its international partners including the World Health Organization to better understand this variant and its impacts. Many foreign governments are implementing strict travel restrictions due to spread of the Omicron variant and international transportation options may be limited.

As a result, you may have difficulty returning to Canada, or may have to remain abroad for an indeterminate period. Local authorities abroad may impose control measures suddenly, including movement restrictions such as lockdowns. In some countries, you may have limited access to timely and appropriate health care should you become ill.

If you must travel Monitor and review Canada's entry requirements before and during your travel as arrival to Canada following international travel could be severely restricted due to the spread of the Omicron variant. [ 11 ] The issue of what is "essential travel" is described in government notices and is important for the court to consider in light of M.M.C.'s request.

A CTV News posting on January 6, 2021, quoted Global Affairs Canada as saying that a decision to travel is "the sole responsibility of the individual" and referred to the government's website that says in part: It is up to you to decide what ‘non-essential travel’ means, based on family or business requirements, knowledge of or familiarity with a country, territory or region, and other factors. [ 12 ] That approach has been criticized by some Canadian public health policy experts who have called on the government to be more explicit on this matter.

It should be noted that a Level 4 travel ban is not in place at present like it was in 2020/2021, with regard to land travel between Canada and the United States of America. Canadian airlines and travel companies continue to offer vacation packages to Caribbean resorts like the one to which M.M.C. proposes to travel. [ 13 ] The Department of Homeland Security of the United States Government has a more direct approach.

On October 26, 2021, it issued a Travel Restrictions Fact Sheet to its embassy and consulates in Canada addressing the types of travel as follows: - “Non-essential” travel includes travel that is considered tourism or recreational in nature. “Essential travel” still permitted includes: work and study, critical infrastructure support, economic services and supply chains, health, immediate medical care, and safety and security. … The following categories do not fall within the definition of “essential travel:”

- Individuals traveling for tourism purposes, such as sightseeing, recreation, gambling, or attending cultural events … [ 14 ] The Government of Canada website provides requirements for unvaccinated children under 12 returning to Canada which includes: (

a) completion of pre-entry, arrival and Day-8 tests; (

b) for 14 days, no attendance at school, other social and care environments, larger crowded settings, and public transportation; (

c) maintaining a list of all persons who have contact with the child and locations visited; and (

d) wearing a well-fitting mask in public. [ 15 ] Although the parties provided no case authorities in support of their positions, there are some cases that provide some perspective on the issues I must decide. In Barritt v. Barritt , 2016 ONSC 4746 , the Court said the following concerning a child's trip from Ontario to Alberta for a family wedding in paragraphs 8, 10, and 11: It is well known that when dealing with issues of custody and access the court’s only concern is the best interests of the child.

What is in the best interest of the child is contextual and will depend upon the particular circumstances of the child under consideration. … a review of the case law has indicated that attending a family wedding, and in particular a wedding of a parent, will very often be held to be in the child’s best interests … [ 16 ] In Broda v.

Broda , 2000 ABQB 634 , the Court commented on the intangible benefits of such an experience when it said at paragraph 18: In this case, it is obvious that the children would like to be allowed to leave the province to attend a family wedding in California and that such a trip would provide benefits to them. Apart from the pleasure of a trip, the trip would allow them to attend at, and participate in, a family wedding; a social ritual like a wedding may assist in the building and strengthening of emotional links to a strong and stable family network of support which is assuredly important for children.

Their participation in any such activities help anchor their place in a loving family and is obviously to be encouraged. The constellation of likely benefits associated with participation in the family wedding can perhaps be summarized by saying that this activity is likely to add to the children's sense of belonging. [ 17 ] It is clear from those decisions that large family gatherings can be very important for and beneficial to a child's development. [ 18 ] On the other hand, since the COVID-19 pandemic, courts have also recognized the concern surrounding out-of-country non- essential travel. In Grieder v.

Zabinski , 2021 ONSC 3796 , the Court said at paragraphs 25 through 27: [25] As a general principle, the courts have been reluctant to suspend access or parenting time as a result of the COVID-19 pandemic.

Numerous cases since the advent of the COVID-19 pandemic have recognized that while parenting and access rights must be exercised in a manner that follows the protective precautions contained within public health directives, there is a presumption that all court orders, including existing parenting arrangements and schedules, should be complied with. … [26] That said, courts have been reluctant to require children to travel outside of Canada in the face of government protocols directing that non-essential travel outside of Canada be avoided. … [27] The courts have expressed concerns with the potential health risks to the children as well as the requirement that children quarantine upon their return to Canada … [ 19 ] In Onuoha v.

Onuoha , 2020 ONSC 1815 , the court said at paragraph 10: … It would be foolhardy to expose the children to international travel in the face of the Travel Advisory, risking the restrictions and complications adverted to therein. … [ 20 ] In Hasan v. Hasan , 2020 BCSC 862 , the Court said the following in paragraphs 16, 37, and 53 in dealing with a similar issue: [16] With respect to parenting arrangements, s. 37 of the Family Law Act , S.B.C. 2011, c. 25 … requires this court to consider the best interests of the children only.

An order is not in the best interests of the children unless it protects, to the greatest extent possible, the children’s physical, psychological and emotional safety, security and well-being. … [37] To the extent that it is necessary, I also take judicial notice of the fact that a variety of agencies and institutions, including the BC Supreme Court, have released well-publicized guidelines to address the risks posed by the ongoing COVID-19 pandemic.

The global travel advisory issued by the Government of Canada advising against all non-essential travel outside of Canada, the fact that the RCMP and local police have been given powers to enforce the quarantine imposed by the federal government for people returning from international travel, and the extremely stiff penalties for breaking self isolation orders are all indicative of the seriousness of the potential risk of contracting or transmitting coronavirus. … [53] Arriving at an order that adequately protects the children from real risk of harm, while respecting the autonomy of a parent to freely travel with their child, is a delicate balancing act.

The goal is not to eliminate all risk, but to bring the risk to an acceptable level, recognizing that the best interests of the child require consideration of not only the physical health, but also the emotional well-being of children. … [ 21 ] All of the cited decisions were made before the Omicron variant became prevalent in Canada and internationally. Public health authorities advise that Omicron is much more contagious than the previously predominant Delta variant. The case numbers for Omicron variant are skyrocketing in recent weeks in all age groups and in all parts of the world.

The mortality rates arising from Omicron are, at this point in time, uncertain.

[ 22 ] It is in that context that I must consider M.M.C.'s proposed travel plans to Jamaica. In doing so, I consider her plans from both a subjective and objective perspective. From M.M.C.'s subjective perspective, she sees it as very important that the Child be able to participate in what will be a very important family reunion, albeit in melancholy circumstances. If there were no travel advisories in place, her proposal would likely meet with court approval as being in the child's best interest as defined in s. 37 of the Family Law Act even in the face of any objections by C.M.J.G.

I must also consider the objective perspective because an order affecting the Child will not be in the child's best interest unless it protects, to the greatest extent possible his physical, psychological, and emotional safety, security, and wellbeing. [ 23 ] The parties want the Court to make an order confirming or denying M.M.C.'s travel plans. When considering that responsibility and taking into account: (

a) the information provided by the parties; (

b) various government advisories and recommendations; and (

c) the case authorities, I conclude that the child's best interests would not be served by me ordering C.M.J.G. to complete travel consent documents other than what was necessary for the Child's passport application. [ 24 ] I am not prohibiting M.M.C. or anyone else other than the Child from travelling to Jamaica. I am not prohibiting the Child from travelling to Jamaica. What I am doing is leaving the decision to C.M.J.G., as a 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 M.M.C. of his decision immediately so that her planned trip to Kelowna to obtain the Child's passport can be either confirmed or avoided. [ 25 ] If the Child does not travel to Jamaica, the parties should cooperate in taking all reasonable steps to ensure the Child will have time with his grandfather while G.C. is still well enough to enjoy time with his grandson.

C.M.J.G. would be well advised to give any such requests by M.M.C. careful consideration even if they temporarily affect his parenting time with the Child while G.C. is still alive. [ 26 ] That is my decision. You will have a copy of the reasons probably by Wednesday of next week. (REASONS FOR JUDGMENT CONCLUDED)