Court File and Parties

Court File No.: FS-18-3507-007 Date: 2020-08-07 Superior Court of Justice - Ontario

Re: Almaz Yohannes, Applicant And: Florent François Sylvère Boni, Respondent

Before: Nishikawa J.

Counsel: Alin Mayer, for the Applicant Florent Boni, in person Karl Marx, interpreter

Heard: August 6, 2020 (By teleconference)

Endorsement

Overview

[1] The Applicant, Almaz Yohannes, and the Respondent, Florent Boni, were married in July 2008. They have one child, Selyana, who is 10 years old. They were divorced in February 2012 by order of the High Court of Justice in France. Under the Order, Selyana’s primary residence was with the Applicant. The Respondent was granted extended visitation and accommodation rights.

[2] In May 2016, the High Court of Justice in France granted the Applicant’s request for an order permitting her to relocate from France to Toronto (the “Parenting Order”). The Parenting Order granted the Respondent parenting time during Selyana’s school breaks, including the last six-weeks of her summer holiday, to be exercised in France, unless the Respondent chose to exercise his parenting time in Toronto. The Respondent’s appeal of the Parenting Order was denied by the Appellate Court of Paris.

[3] Since relocating to Toronto, Selyana has resided with the Applicant, the Applicant’s spouse, and two siblings.

[4] As a result of the current COVID-19 pandemic, the Applicant has concerns about Selyana travelling to France to spend time with the Respondent this summer as she would normally do under the terms of the Parenting Order.

[5] The Applicant brings an urgent motion for interim relief, on a without prejudice basis, requiring that the Respondent exercise his parenting time with Selyana in Toronto, Ontario, for as long as the Government of Canada advisory against all non-essential international travel (the “Travel Advisory”) remains in effect. In the alternative, the Applicant requests an order suspending the Respondent’s parenting time for as long as the Travel Advisory remains in effect, with reasonable make-up parenting time to be scheduled upon further agreement between the parties.

[6] Pursuant to the Endorsement of Hood J. dated July 23, 2020, the motion was determined to be presumptively urgent and assigned to be heard by me to determine the next steps or to hear the matter.

[7] Given that under the Parenting Order, Selyana would be required to travel to France shortly, and that the Respondent has contacted police services in France regarding the Applicant’s alleged non-compliance with the order, I find that this matter is of sufficient urgency to warrant proceeding without the need for a case conference: see r. 14.(4.2) of the Family Law Rules, O. Reg. 114/99.

Issues

[8] The issues that must be addressed in this motion are as follows:

(a) Does this court have jurisdiction over this matter?

(b) Should this court vary the Parenting Order on an interim, without prejudice basis?

Analysis

Does This Court Have Jurisdiction?

[9] Under s. 22(1)(a) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, a court shall only exercise its jurisdiction to make an order for custody or of access to a child where the child is “habitually resident in Ontario at the commencement of the application for the order[.]”

[10] Pursuant to s. 22(2) of the CLRA, a child is habitually resident in the place where he or she resided:

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

[11] In this case, I find that Selyana is habitually resident in Ontario. Since 2016, she has been residing in Ontario with her mother, the Applicant, pursuant to the Parenting Order.

[12] Subsection 41(1) of the CLRA states that a court shall recognize an order for the custody of or access to a child that has been made by an extra-provincial tribunal unless the court is satisfied:

(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;

(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.

[13] None of the above circumstances apply here. As a result, the Parenting Order is deemed an order of the court and enforceable as such: CLRA, s. 41(2).

[14] The court may decline to exercise jurisdiction if the Ontario court is not the most appropriate forum to hear the matter or is forum non conveniens. See, CLRA, s. 42(2).

[15] In this case, the Respondent would bear the burden of demonstrating that Ontario is not the most convenient forum. While the Respondent submitted that he wanted to resolve the matter through an international mediation, the Respondent has not seriously challenged the jurisdiction of this court.

[16] In any event, I am satisfied that Ontario is not forum non conveniens. The Applicant and the child have resided in Ontario for over four years. The Applicant previously brought an application in this court to change Selyana’s name. The evidence relevant to the current dispute is mainly in Ontario. Moreover, any unfairness to the Respondent, which he has not shown, would be outweighed by the unfairness to the Applicant if forced to litigate in France.

Should this Court Vary the Parenting Order?

[17] Subsection 42(1) of the CLRA permits the court to supersede an extra-provincial order in respect of custody of or access to a child “where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and… the child is habitually resident in Ontario at the commencement of the application for the order[.]”

[18] In Semkiw v. Sutherland, 2020 ONSC 4088, at para. 37, Horkins J. found that it was not in the children’s best interests to travel to Texas to be with their mother during the pandemic, because the proposed travel was non-essential and would recklessly expose the children to the risk of infection.

[19] In Onuoha v. Onuoha, 2020 ONSC 1815, at para. 10, Madsen J. stated that “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] I am satisfied that the current COVID-19 pandemic is a material change in circumstances that affects or is likely to affect the best interests of the child such that the Parenting Order should be varied on an interim, without prejudice basis.

[21] At this time, given that the Travel Advisory remains in effect, travelling to France raises unacceptable risks to Selyana’s health and safety and is not in her best interests. It is worth noting that the Government of France continues to restrict entry into the country by foreigners. While this would not apply to Selyana, who has French citizenship, it demonstrates that governments continue to place stringent limits on travel and entry to minimize the risk of spreading the virus.

[22] If she were to travel to France, Selyana would be taking a lengthy flight, unaccompanied, on a commercial airline. The Applicant was unable to obtain assurances of any additional measures in relation to unaccompanied minors on either Air France or Air Canada. The Applicant’s evidence is that on Air France, only children over 11 years of age are required to wear masks.

[23] The Respondent submits that precautionary measures, such as wearing a mask and social distancing, would protect Selyana from any risk during an international flight. However, this is far from certain. A Government of Canada advisory shows 19 international flights with confirmed COVID-19 cases since July 1, 2020, including an Air France flight from Paris. Moreover, the transmission of COVID-19 has proven difficult to control, including in settings where masks or other protective equipment are worn. Travelling to France on a commercial airline and transiting through airports would unnecessarily expose Selyana to the risk of infection.

[24] While both parties agree that Selyana is a capable and responsible child, it is not reasonable to expect that a child her age would be able to take all the necessary measures over such a lengthy period of travel time. In addition, the Applicant has verified with her employer that Selyana would not be covered by her employee health benefits plan while in France. She would also have to self-isolate for 14 days upon returning to Canada, which could impact her ability to attend school at the beginning of the school year.

[25] The evidence does not support the Respondent’s position that the Applicant is using the pandemic as a pretext for keeping Selyana from him. Since they left France, the Applicant has facilitated access to Selyana at least three times a year, in March, July, and December. She has provided access when the Respondent has come to Toronto. In addition, the Applicant has not taken the position that the Respondent should not have access to Selyana this summer, but that the access should be exercised in Toronto. The Applicant, who is required under the Parenting Order to pay Selyana’s travel costs, has offered to pay the cost of the Respondent’s travel.

[26] My finding that it is not in Selyana’s best interests to travel to France during the pandemic does not in any way minimize the importance of the relationship between her and the Respondent, or her time with him, her grandparents, and her extended family in France. The global pandemic is an unprecedented event that has unfortunately compounded the difficulty that arises from the Respondent and Selyana living in different countries. In fact, Selyana’s time with the Respondent in March 2020 was cut short when the Canadian government advised all Canadians travelling abroad to return to Canada.

[27] In the current circumstances, where the COVID-19 pandemic continues and the Travel Advisory remains in place, Selyana’s health and safety cannot be put at risk. When I inquired about whether the Respondent is able to travel to Canada, he advised that he is applying for a passport but will not receive it for approximately three weeks. He will be required to self-isolate for two weeks upon arriving. In addition, while he had been working from home until May 2020, he will be required to return to his workplace in early September 2020. While I recognize that requiring that the Respondent exercise his parenting time in Toronto is not ideal, it is the best interests of the child that govern.

[28] I expect that the parties will continue to cooperate to facilitate access by the Respondent through telephone and video calls with Selyana and, in the event that the Respondent travels to Toronto, to ensure reasonable make-up time for lost parenting time.

Conclusion

[29] The motion is granted.

[30] The parties are encouraged to agree on the costs of the motion. If the parties are unable to agree, the Applicant shall submit cost submissions within seven days of this decision. The Respondent’s responding cost submissions are due within seven days of the Applicant’s. Costs submissions shall not exceed two pages, not including a costs outline. They are to be served and filed by email. If no costs submissions are received within this time frame, the parties will be deemed to have resolved costs.

Order to go as follows:

(a) On an interim and without prejudice basis, the Respondent shall exercise his parenting time in Toronto, Ontario as long as the Canadian Government’s Travel Advisory against all non-essential international travel remains in effect.

[31] This endorsement is an order of the court enforceable by law from the moment it is released. Counsel may submit an unapproved draft order consistent with the terms of this Endorsement to me through the Family Trial Coordinator for signing.

Nishikawa J.

Date: August 7, 2020