By Brittany Koenig, Paralegal Navigator, Calgary
The issue of travel may arise from time to time, and it is up to you and the other parent or guardian(s) to agree on what travel looks like with your kids. Before accepting the terms and conditions and charging your credit card for those two glorious weeks away, make sure that you have written consent from the other parent or guardian or you may run the risk of being ordered by the court to come home early.
There are a lot of things that can come up that may be unique to families that the legislation does not provide for and, because travel is not guaranteed or essential to parenting, it falls under that “unique” category - there is nothing in the legislation that gives a parent the right to travel or the right not to travel.
Negotiating Travel in Separation Agreements
In most cases, parents come to agreements around parenting and a thoughtful parenting plan consider all of the possible scenarios that may arise for that family, including travel. A parenting plan is commonly turned into a separation agreement and if travel is a consideration for your family, it should form part of yours. When you are discussing travel with your ex, some things that may be helpful to consider in your negotiations are:
- Amount of notice: Will either of you need to notify the other of your travel plans? If so, how far in advance will you provide that notice?
- What type of information will you share? Emergency contact information, flight details, location where you will be travelling, the accommodations (name of the hotel, room number).
- Any restriction on your child’s travel: Are you both okay with the other parent travelling outside of the province? What about if they want to travel with the child outside of the country? Will there be any restrictions on the length of that travel? Will there be any restrictions on who they can travel with?
- Written consent: Will written consent be required for the other parent to travel? Will the written consents change if it is related to travel outside of the province or country?
It is important to note that the Canadian Border Services Agency strongly recommend that a child who is travelling alone with only one parent or guardian provide a written consent. For further information on this, check out the Government Canada website.
A template recommended form is also available on that website and linked here.
- Medical considerations: Will you or the other parent be required to cover all of the immunizations or vaccines required for travel? What about travel insurance? Who will be responsible for the costs for the travel insurance? Will it be required? If there was a medical issue or emergency with your child while they are travelling, who will be responsible for making decisions? Will they be required to notify the other parent? If so, when?
- Your child’s passport: Who will be allowed to apply for your child’s passport? Who will be responsible to hold onto that passport? If your child is a citizen of more than one country, what passport will they use?
Travel Orders – Applying to the Court to Travel
Let’s say that you have considered all the above. Either you and the other parent can’t agree or you already have this all laid out in writing in a separation agreement. But when the time comes to travel, the other parent won’t sign a travel consent or won’t give you the child’s passport. When this happens, you can apply to the court to ask for an order that allows you to travel with the child even though the other parent has not consented. An order of the court would supersede the other parents’ consent. So when you get to the border, you can hand them your order and be on your way.
NOTE: For parents who wish to travel outside of the country, you should obtain an order from the Court of King’s Bench as Canada Border Services will not likely accept a Provincial Court Order. The Provincial Court of Alberta does not have the jurisdiction to allow you to travel outside of the country but can grant orders allowing you to travel within Canada.
Ultimately, when considering any applications to allow a child to travel with a parent, the court will weigh the evidence to consider whether allowing the child to travel is within the child’s best interests. The best interest of the child is paramount in any travel order.
It is important to note that in almost all cases, the courts will not grant an order allowing a parent to travel with a child to a country that is not a signatory to the Hague Convention. If you are not sure whether or not the country of travel is a Hague Convention signatory, check out the Government of Canada website for more information.
What could happen if there is no consent for travel with your kids?
In cases where there is no written consent, agreement, or order in place allowing you to travel with your child, then:
- you could be reported to the RCMP or police for kidnapping
- the other parent or guardian could apply to the court to ask for an order for the child to be returned to their care in Canada
- the other parent or guardian could apply to the court to prevent you from any future travel with your child
Coach My Case has a team of experienced legal coaches and paralegal navigators who are experienced in working with parents in any family travel related dispute. If you have questions about travelling with a child, call us today for a free consultation.