Child Custody and Access When the Child is in a Different Country

There are a host of additional considerations with respect to child custody and access when the child is in a different country. I have recently discussed child custody when one parent has moved to a new country following breakdown of the marriage and the issue of whether temporary stays abroad can impact child custody.

Today’s post will examine access when the child is in a different country. “Access” is the word used in the federal Divorce Act to describe the time that a parent spends with the child who lives with the other parent (note that the BC Family Law Act doesn’t use the word access; instead it talks about contact with a child). In Chitsabesan v. Yuhendran, 2016 ONCA 103 the court confirmed that it is always in the best interests of the child to have a healthy relationship with both parents; that is equally true with respect to access when the child is in a different country and when the parents live in the same city.

Original order for access when the child is in a different country

The mother in the Chitsabesan v. Yuhendran matter was born and raised in England. The father was born in Sri Lanka and raised in Canada. The parties married in England in 2009. They initially lived apart before residing in Ontario. Their child was born in June 2012. The parties separated in early 2013. The court awarded sole custody of the child to the mother and allowed the mother to relocate to England with the child. The court also ordered that the father was to have access to the child to six weeks per year in one-week blocks, except for the summer when he is to have two weeks at the end of August.

Father seeks longer block of time for access when the child is in a different country

When the child was three years old, the father applied to have access to the child for a block of time, from January 12, 2016 to February 4, 2016, so he could bring his daughter to Toronto to allow her to develop a close and lasting relationship with his mother (her paternal grandmother) and other paternal relatives. The father noted the significant cost of purchasing three return air tickets to exercise each one-week access period under the original order for access (three tickets are necessary since the child is too young to travel alone and he must fly to London, return with the child, fly back to London with the child and then return to Toronto alone). In addition, the father pointed out that exercising access in England is difficult because of the cost of accommodation in London.

The child’s mother opposed the requested access because it would interfere with the three-year-old child’s nursery school attendance from 8:45 a.m. to 11:45 a.m. Monday to Friday. The mother relied on the school’s policy, which stressed the importance of attending school regularly.

Best interests of the child govern access when the child is in a different country

In ordering access for the longer block of time as requested by the father, the court stated as follows (emphasis added):

[5]         No matter what may be the school’s policy regarding an absence for parental access, in our view it is not in the best interests of the three-year-old child to consider attendance at this half-day program more important than fostering a meaningful relationship with the child’s father and his family. It is always in the best interests of the child to have a healthy relationship with both parents. Where the parents live so far apart that access with the non-custodial parent cannot take place regularly, compelling reason should be shown why longer periods of access are not appropriate.

It was in the child’s best interests to foster a meaningful relationship with her father and his family. Given the geographical distance which made regular access by the non-custodial parent impractical, attendance at the child’s half-day nursery school was not a compelling reason to thwart the father’s request for a longer period of access.

Bottom line on access when the child is in a different country

There are additional complications when dealing with child custody and access when the child is in a different country. However, it is always in the best interests of the child to have a healthy relationship with both parents. Where the parents live so far apart that access with the non-custodial parent cannot take place regularly, compelling reason should be shown why longer periods of access are not appropriate.