Post-separation, parents often find it difficult to travel alone with their children. These difficulties often lead to expensive last minute court applications and significant stress as parents scramble to make all the last minute arrangements. In extreme cases, there is the threat of parental abduction to either another part of Canada or internationally. This blog post will address some of the simple solutions available to parents to allay their fears and make traveling with children after a separation much easier.
Getting a Passport
The simplest way to facilitate efficient travel is by obtaining a passport for the child. Children over the age of 16 can apply for their own passport. Children under 16 years old can obtain a passport through the application of a parent, the custodial parent or the legal guardian of the child. There is an Order in Council, titled Canadian Passport Order ,that covers most of this information. It is available online for easy reference. The passport application also has a number of useful tips and checklists on it. Parents who have separated will need to submit all the documents relating to custody, access and mobility of the child with the completed application. These documents are extremely important in determining whether or not a passport will be issued.
Passport Canada pays special attention to access, custody and mobility of the child because of the legal significance that attaches to these terms. A parent with sole custody may not need the non-custodial parent’s signature to get a passport, provided they comply with all the requirements. Equally, non-applying parents in a joint-custody scenario need to consent to the passport being issued before Passport Canada will give the child a passport.
If you or your ex-suppose intend to travel with your child internationally after separation, you should advise your lawyer of this at the time of separation. That way they can incorporate specific language into the separation agreement or court order clarifying how and when a passport can be obtained. This will make the process much simpler when it comes time to get or renew a passport for the child.
Restricting Travel
In situations where conflict is high between the parents, they may want to restrict the ability of the other parent to travel with the children and obtain a passport. Once again, proactive steps at the time of separation are important to simplify the process later on. If there is a court order that requires both parent’s consent for the issuing of a passport, Passport Canada will not issue a passport unless there is a revocation or variation of that court order. Where warranted, mobility restrictions can be incorporated into the court order or separation agreement. This can restrict international and domestic travel with the child. In situations of extreme conflict, you can even obtain a court order completely prohibiting the child from having a passport.
Another option that won’t necessarily restrict travel but is a useful tool offered by Passport Canada is the passport system lookout. It does not prevent the issuance of a passport but it will generate an alert if an application is submitted under the child’s name. A parent can send a letter to Passport Canada and request that the child’s name be added to the list. However, where the parent is non-custodial, has no specified access and there is no court order or mobility restrictions on the child, Passport Canada may not add the child’s name to the list.
Finally, if there are real concerns about abduction parents can consider the use of Our Missing Children. This is a program run by Canadian law enforcement and other government agencies that helps find and return abducted children. It involves Canada Border Service Agency, therefore they can verify immigration information and manage national lookout reports on missing or abducted children. Similar to the passport system look, this program can issue an alert once a passport has been issued to the child. This tool is another method that does not prevent a passport from being issued to the child but rather serves as a warning system. It is mainly tasked with locating and returning children after they have been abducted (either by a parent or someone else).
Consents
Finally, outside of questions surrounding issuing or restricting passports for children, travel consents are a common method of facilitating one parent’s travel with their children. Consents are not official and there is no set requirement. A good example can be found at https://www.dalestreimanlaw.com/travel-consent-form. This form consent has an official look to it that helps lend credibility to the document. An additional benefit is to fill out the standard form and then have a lawyer notarize it for you. This should help facilitate travel by lending the document more weight. It also may be beneficial to place a clause in any separation agreement or court order that requires either parent to provide a consent when requested. Parents should be wary, though, of consent request to countries that have not signed on to the Hague Convention. In a previous blog posting I addressed the Hague Convention at length. For clarity though, the convention is an international treaty that provides parents with a legal recourse to have their children returned to them. Non-signatory countries will not abide by the Hague Convention’s rules.
Traveling with children is a common problem that separated parents face. There are a number of elements at play. If you are looking to travel with your children but are not sure what to do about your uncooperative spouse, contact the lawyers at Dale Streiman Law LLP.
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For more information on the Order in Council see http://canlii.ca/t/lhhk
pptc155.pdf
Child Abduction in a Family Context
