Parental Consent for Child Travel in Canada
Introduction
Traveling with children can be a joyous and enriching experience. It's an opportunity to create lasting memories and provide valuable experiences that can contribute to a child's development. However, when parents are separated or divorced, the dynamics can change significantly, particularly when one parent wishes to travel outside of Canada with the child and the other parent refuses consent. This post will explore the complexities around obtaining consent for child travel in Canada, especially where court orders are involved.
Legal Requirements for Travel Consent
The legal requirements for parental consent for child travel in Canada are closely tied to the best interests of the child. In situations where one parent refuses to provide consent for the other parent to travel outside of Canada with the children, the traveling parent may need to obtain a court order permitting the travel and dispensing with the other parent's consent. This court order can either cater to a specific trip or cover all future trips. However, obtaining a "blanket" order for all future travel requires a proper evidentiary foundation and can be more challenging to secure.
Considerations for Dispensing Consent
The court's primary consideration in these cases is the best interest of the child. This is a broad concept that encompasses several factors. These factors may include:
The child's age: The age of the child may influence the length of time that the court thinks is appropriate for the child to be separated from the non-travelling parent.
The purpose of the trip: In general, travel is considered to be beneficial for children and the purpose can support that, for example, where children will be visiting extended family, participating in a school field trip or sport tournament, or visiting a theme park.
The timing and length of the trip: For example, is it over the child’s birthday or a holiday that is usually shared by the parties? Will the child miss school and, if so, is it excessive?
The impact on the non-travelling parent’s time with children: The court will consider whether the travelling parent has scheduled the trip to minimize the disruption on the child’s time with the non-travelling parent, how much parenting time will be missed and whether any make up time is appropriate in the circumstances.
The location of travel: The location could support the purpose of the trip; for example where it offers something particularly important to the child, such as exposure to extended family or culture. By contrast, the location may also raise concerns due to danger and unsafe conditions in the country or city.
Evidentiary Requirements for "Blanket" Orders
If a parent seeks a "blanket" order covering all future travel, they must present evidence of the other parent's past lack of cooperation with travel. However, the court is unlikely to dispense with a parent's consent to travel if the evidence merely shows that the parties are estranged and lack communication. If there's a record of the non-traveling parent being difficult with travel consents but eventually providing them in sufficient time, the court may not grant a blanket order, especially if the party seeking it doesn't provide evidence of specific travel plans.
Additional Legal Measures
In some cases, additional legal measures may be sought to ensure the smooth execution of travel plans. These may include:
Requiring that the other parent sign travel documents (passport applications, visa applications, etc.) by a certain date.
Dispensing with consent to applying for and renewing travel documents for the child, such as passports or Nexus cards (whether Canadian or for other countries).
Designating who should hold the children’s travel documents (e.g., should one parent keep them or does a third party need to hold them and, if so, how many days in advance should they be provided to a travelling parent).
Prohibiting the other parent from interfering with the travelling parent’s travel with the child; this relief was ordered by the court in Khaled v. Khaled, [2014] O.J. No. 2207 (S.C.J.). However, what “interference” was anticipated is not discussed. This relief may be helpful where a parent has previously caused difficulty with travelling (or threatened to) by contacting border officials, placing the child on the Passport System Lookout, or other similar actions.
Conclusion
Navigating the landscape of parental consent for child travel in Canada can be complex, particularly when court orders are involved. It's crucial to understand the legal requirements, considerations, and evidentiary demands involved in this process. Ultimately, ensuring the child's best interest is at the heart of these matters, and all actions should align with this principle. It's recommended to seek professional legal advice in these situations to ensure the best possible outcome for all parties involved.
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