What Binational Families need to know about closed Canada-US Border

The coronavirus (COVID-19) continues to play havoc on employment, education, entertainment among other activities we once considered regular occurrences.  However, with the health and safety being a priority, the customary legal process has had to adapt; particularly family law as it pertains to the dissolution of marriage and child custody cases.  Recently, the Dallas Bar Association has provided some information for those binational families of Canada and the United States.

As the curve of COVID-19 cases continues to flatten in Canada, the United States is reporting an excess of 60,000 cases per day which has led to the governments of both countries closing the border.  Before anyone ever heard of COVID, both Canadians and Americans enjoyed a relatively open border.  With this mutual covenant, residents of each country could travel without problems for the formation of binational families in which one partner was born and raised in Canada and the other in the U.S.  Whether that family chooses to reside in Canada or the U.S., there are inevitable enduring ties to friends and family members on the other side of the border.

The spirit of family reunification is at the core of border regulation in Canada, but the pandemic has unquestionably lessened the ease with which the border can be crossed which impacts binational families.  Although the border remains open for Canadian citizens, foreign nationals may only enter the country in very limited circumstances including essential purposes.  This does not include tourism, recreation or entertainment.

Immediate family members of a Canadian citizen or permanent resident are permitted to enter Canada if they are a spouse, common-law partner, dependent child, dependent child of a dependent child, parent, step-parent or guardian.  In order for an immediate family member to be permitted entry into Canada, they must be able to prove they will be staying in the country for at least 15 days and have a plan to quarantine for 14 days upon arrival.  The mandatory quarantine plan must include a place to stay and details about how the family member will get to their destination, grocery shop and gain access to essential services or medical care.

Penalties for not following the quarantine plan include a fin up to $750,000, six months in jail and being banned from entering Canada for one year.  The Canada Border Service Agency is patrolling the border for families and so, too, are the Canadian courts.

Recently, Justice Palbinder Shergill of the Supreme Court of British Columbia involved a binational family resident in B. C. with significant ties to Virginia.  In this particular case the parents were married in Virginia and two of the three children were born in the state.  The father’s family and friends reside in Virginia and all three children would spend holiday time with their father in Virginia throughout the year. 

On March 12, the father travelled to Virginia with the children despite the mother’s refusal to consent. The pandemic was in its nascent stage in mid-March, but concern quickly escalated. The mother demanded, on two occasions, that the father return the children to B.C. The father refused and did not return until March 22, as planned.

Two months later, the father travelled to Virginia with the children once again. By this time, the pandemic was sweeping the globe and the mother, not surprisingly, opposed the travel given her deeply held concerns for the children’s health. Following the father’s departure to the U.S. with the children, the mother commenced court proceedings to force the father to return the children to B.C.

In resisting the mother’s claims, the father took the position that a May 2019 agreement between the parties, which permitted both parties to travel freely outside of Canada with the children, governed notwithstanding the pandemic. As a companion to that position, the father went on to say that he had “taken reasonable and necessary precautions and acted in the best interests of the children.”  The judge disagreed, noting “there is ample evidence that the (father)’s actions by traveling across international barriers during this pandemic have put the children at real risk of harm.” The judge pointed to various court decisions across Canada that have described international travel with children as “foolhardy” and travel to the U.S. in particular as unnecessarily placing children’s health at risk.

In addition to the judge’s criticism of the father’s travel and destination, the judge was also critical of the mode of transportation as the father traveled by air.  The judge dismissed the father’s argument that his compliance with government travel restrictions is sufficient to demonstrate there is no risk of harm to the children. The father’s position “ignores the responsibility that (he) has towards protecting and promoting the best interests of the children. Deflecting his responsibility to health authorities flies in the face of the duty he has as a parent and guardian of the children to act in accordance with their best interests.”

Today, by order of the judge, both parents are prohibited from international travel with the children and from domestic travel with the children by airplane.  The judge concluded that “maintaining the children’s health and safety supersedes their need to maintain their connection to friends and family in Virginia.”  It remains to be seen how Canadian family court judges will continue to protect children’s health and safety even if the restrictions are eased.

Having an attorney with the resources and knowledge to give you the best representation is vital to your interest and the interest of your family.  You also want to make sure they will exhaust all avenues and be willing to research, pursue and implement strategies to provide the best possible outcome.

Rob McAngus, Partner with Verner Brumley Parker, P.C., is Board Certified in family Law and his practice is devoted primarily to family law, including high conflict divorce, custody cases, and complex property issues. In addition to being selected on the Board of Directors for the Family Law Section of the Dallas Bar Association; he values your priorities as a parent and works with you to achieve the goals that will help transition your family to a new normal.  As both an adopted child and a member of a blended family, Rob can provide a unique perspective in the practice of family law.

Rob has been recognized in Super Lawyers as a Rising Star in 2016 through 2020, and recently The National Advocates recognized Rob as one of the Top 40 Under 40.  He can be reached by calling 214.526.5234 or email at rmcangus@vernerbrumley.com.  Mr. McAngus received his bachelor’s degree cum laude and master’s degree from Baylor University and graduated cum laude from the Dedman School of Law at Southern Methodist University.