COVID-19 Developments and Legal Updates

Kathleen Leighton

Those who have vacation homes or cottages in Canada may be starting to form their summer plans as temperatures begin to rise. However, the ongoing pandemic has resulted in a host of restrictions limiting travel to Canada, and these rules have been changing rapidly. Many are understandably unclear on whether they are able to come to Canada for this purpose, and the answer will vary from person to person. Most of the rules currently in place apply to foreign nationals, as discussed below, but there are also considerations for Canadian citizens and permanent residents.

Health check and quarantine requirements for all travellers

Health check

Everyone flying to Canada, even Canadian citizens and permanent residents, will be subject to a health check. If a traveller has COVID-19 related symptoms, they will likely not be permitted to board their flight. Travellers should also be equipped with a non-medical mask or face covering.

Quarantine requirements

There are quarantine requirements at the federal level and, in some cases, the provincial level. The federal rules apply to every person entering Canada, whether they are a foreign national, Canadian citizen, or permanent resident. Assuming a traveller is asymptomatic on arrival, they will likely be required to quarantine for a 14-day period and will need to have access to food, medicine, and any other necessities of life while in quarantine. They will be asked questions on how they plan to access such things while quarantined at a cottage or summer home – they can’t simply stop at a grocery store on the way, for example.

Travellers will have to satisfy the border officer that they have an appropriate quarantine plan in place. This includes demonstrating that they will be able to quarantine in a location where they will not be in contact with vulnerable persons (unless the person is a consenting adult or parent or minor in a parent-minor relationship). Vulnerable persons include those with underlying medical conditions that make them more susceptible to COVID-19 complications, those with compromised immune systems from a medical condition or treatment, and those 65 or older.

While there are narrow exemptions to the quarantine requirements, they are unlikely to apply to someone who is coming to visit a cottage or summer home.

Canadian citizens and permanent residents (travel rules)

For those who are Canadian citizens (including dual-citizens) or permanent residents of Canada, there is no prohibition to enter Canada. However, appropriate travel documents and evidence of Canadian citizenship or permanent residency status will be required. Advice should be sought on this point as needed.

Foreign nationals (travel rules)

Foreign nationals, in this case persons who are not Canadian citizens or permanent residents, have additional rules and restrictions to consider. There is presently an Order in Council that applies to foreign nationals travelling to Canada from the United States (the “US OIC”), and a second Order in Council that applies to foreign nationals travelling to Canada from outside the United States (the “non-US OIC”).

US OIC rules (travelling to Canada from the US)

Under the US OIC, which is currently in place until June 21, 2020, foreign nationals are prohibited from travelling to Canada from the United States unless certain requirements are met. Namely, this particular OIC prohibits foreign nationals from entering Canada from the US if:

1. They have COVID-19 or have signs and symptoms of COVID-19 (i.e. a fever or cough or fever and breathing difficulties) or even reasonable grounds to suspect they have such signs and symptoms;
2. They will be unable to comply with quarantine requirements based on their purpose of entry and the length of their stay; or
3. They are seeking entry for an optional or discretionary purpose (i.e. a non-essential purpose).

Assuming the travellers are asymptomatic and can comply with quarantine requirements, the main issue to be assessed is the third point (the purpose of entry).

“Optional or discretionary” purpose

As noted, foreign nationals cannot enter Canada from the US if their purpose for entry is optional or discretionary, which is defined in the relevant order as entry for “tourism, recreation, or entertainment” purposes.

Entry to visit a summer home or cottage is likely to be considered an “optional” visit that falls under the umbrella of tourism, recreation, or entertainment. Prior guidance from the Government of Canada also noted that entering “to spend time at a secondary residence (vacation home, hunting or fishing lodge, etc.)” is optional/discretionary, even when coming in for property upkeep or maintenance purposes. While that particular reference is no longer in the guidance, it is still a risk that entry for such purposes will be found optional.

A potential caveat may exist for an individual who is the immediate family member of a Canadian citizen or permanent resident. Specifically, a foreign national does not need to show their purpose for entry is essential (aka not optional or discretionary) if they intend to enter Canada to be with their immediate Canadian citizen or permanent resident family member and can demonstrate an intent to stay in Canada for a period of at least 15 days. Therefore, if a visit to a cottage or vacation home also means being with an immediate family member in such circumstances, this should be allowed.

Note, “immediate family member” is a defined term. There would be recommended documentation to help show this definition is met and that there is an intent to stay for at least 15 days. Advice should be sought on these details.

Non-US OIC rules (travelling to Canada from outside the US)

The non-US OIC, which is in place until June 30, 2020, prevents foreign nationals from travelling to Canada if they are arriving from a foreign country other than the United States. This OIC then carves out a number of narrow exemptions to the general prohibition, most of which will not apply to someone seeking entry to visit a summer home. Individual advice should be sought on this point. However, there is a travel exemption for immediate family members of Canadian citizens or permanent residents, if they are not symptomatic.

If a foreign national is an immediate family member of a Canadian citizen or permanent resident and is asymptomatic, they will also need to show their purpose of entry is not optional or discretionary if they are coming for less than 15 days. As discussed above, a visit to a summer home or cottage will not likely be accepted. However, if they are asymptomatic and travelling with or entering to be with an immediate Canadian citizen or permanent resident family member at the summer home or cottage and can demonstrate an intention to enter Canada for at least 15 days, this should be accepted.

Again, advice should be sought to confirm if the definition of “immediate family member” is met and what documentation should be available for travel.

Provincial Requirements

The above travel restrictions exist at the federal level. All persons seeking to enter Canada should also consider if there are provincial restrictions in place for their destination province that will prevent them from entering to visit their summer home or cottage. This is important as some provinces do have entry restriction.

Conclusion

Canadian citizens and permanent residents, as well as foreign nationals who are immediate family members of Canadian citizens or permanent residents may be able to enter Canada to visit a cottage or summer home in some circumstances. Other individuals will likely be unsuccessful on the basis that their travel will be considered optional or discretionary. Those flying will be subject to a health check, and all travellers should have a detailed quarantine plan in place. In all cases, individual advice should be sought, and it must be understood that there is a wide range of discretion at the border that can result in different than anticipated outcomes, particularly during these unprecedented times.

This update is intended for general information only. If you have questions about the above, or any questions pertaining to your ability to travel to Canada during the COVID-19 pandemic, please contact a member of our Immigration Group.

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