August 8, 2019
As the summer months roll in, and kids are off from school, we often get asked about traveling. Are consents necessary?
Three important questions to consider about traveling are:
Is your child under 18 years of age?
Will they be traveling outside of Canada?
Will they be traveling without all of their custodial parents or custodial guardians?
If you answered yes to any of these questions, whether you are separated or not, then a travel consent is likely necessary.
If a minor child, that means under 18 in Ontario, is traveling without both of their custodial guardians, whether it is a father traveling to the USA with the children for the weekend or the kids going to a soccer tournament with chaperones across the Canadian border, it will be necessary to obtain and carry a travel consent letter. Even in the case of mom just nipping over the border with the kids to do back-to-school shopping, you should have a consent signed.
A travel consent is a form of protection against the risk of international child abduction. When traveling with children, border agents/travel authorities rely on travel consents to verify that both parents have consented to a trip, and that the child is not being taken from Canada by one parent or a stranger.
Border agents can refuse to allow you to enter or leave their country with a child if there is any concern that you are doing so without full consent from both parents and/or custodial guardians. As a result, while the letter can be an inconvenience to prepare and have witnessed, it is recommended by family lawyers and the Government of Canada, even in situations where a parent has sole custody and the other parent only has access rights.
A great example of a travel consent can be found on the Passport Canada website: https://travel.gc.ca/docs/child/consent-letter_lettre-consentement-eng.pdf We recommend clients use the government form rather than making up something themselves.
The non-traveling parent is expected to sign these forms if travel is reasonable.
What about giving notice?
If you do not have a court order or a Separation Agreement setting out the terms of travel, we generally recommend giving the other parent as much notice in advance of the trip. The last thing you want to do is surprise them with something sudden and right around the corner, particularly if that is going to disrupt their normal schedule of parenting with your child. Ideally, at a minimum a month’s notice should be given. You also need to give details of where you will be staying, your contact numbers while you are away and how you will be traveling with your child.
Can you refuse to sign the consent?
To refuse consent, there must be a serious concern that the trip would pose a significant risk to the child. It must be a reasonable thing for you to say that the child should not go. If the country is in a state of war or civil unrest and things like the country has an unstable government – they are all good reasons to pause and say it appears not to be reasonable for the child to travel there. Often courts are hesitant to allow travel to countries that are not signed on to the Hague Convention on the Civil Aspects of International Child Abduction. They are reluctant to let a child go with no hope of getting them back if the parent really does intend to never come back to Canada.
What do you do if you believe the refusal is not reasonable?
In the face of a refusal, the traveling parent can bring the matter to court to get an order that they can travel without consent, and ask for costs as against the parent who refused to sign. However, they are only going to be successful if the parent who refuses is being unreasonable. The order of the court will then become their travel consent letter and they can travel.
They grey area is what causes court cases. When is something reasonable and when is it not? War in country is a very black and white answer to the question. No list exists of places that have been deemed by Courts in Canada as places where for certain a travel consent would be refused. It becomes a question of why the parent wants to take the child there, what benefit is there to the child? What are the risks? Can the risks be guarded against? Often it involves issues of visiting extended family and exposing the child to their cultural heritage. Those benefits then get weighed against the possible risks of travel, which goes back to the physical safety issues of war and social unrest, or even other factors such as health of the child.
The driving question for any court will be what is in the best interests of the child. This is not to be confused with the best interests of the parent who wants to travel. Anyone wishing to travel needs to consider whether any of those factors may cause an issue and if so, start raising the issue well in advance of the intended trip. If you are the parent wanting to travel and you believe the travel to be beneficial and safe for the child, and the other parent refuses, then you need lots of time in advance to bring the matter to a court. To do that you would need to bring a Motion or an Application followed by a Motion depending upon the situation you have.
In cases where you already have a court order but it does not address travel, then you bring a Motion or a Motion to Change. If you have no court order or Separation Agreement that deals with travel terms, then you must bring an Application and then follow that up with a Motion. Depending on your particular circumstances, the process that you need to use can be different. You need to make sure you have enough time ahead to deal with Court before the dates of travel.
What if the other parent repeatedly refuses to sign and you need to go back to court frequently?
This is when you can ask for the order of the court to say that you do not need to get permission in future. The technical language is called dispensing with the consent of the other parent.
As with all court processes in Ontario Family Court, you do not need to have a lawyer. It is helpful though to get some advice to be better able to understand the forms you need to use, how they need to be completed, and how you go about getting all the necessary paperwork into the right court. Un-bundled legal services can help you if you do not or cannot have a lawyer representing you fully.
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