As you may be aware, a parent wishing to travel outside of Canada with his or her child must first obtain consent to do so from the child’s other parent, unless the other parent is also accompanying the child or there is a court order dispensing with consent of the other parent. This is true regardless of whether the parents are married, unmarried, separated, or divorced. Even those with sole custody must obtain consent from the child’s other parent before the child may travel abroad. The necessary travel consent must be in writing and it is best to have the document notarized.
Understandably, many parents are reluctant to provide consent for their children to travel to parts of the world experiencing political or social conflict. This raises the question of whether one parent can force the other parent to consent and when consent can be refused.
Canadian courts have held that consent must not unreasonably withheld. This means that a parent cannot refuse to consent simply because he or she does not approve of the travel plans. When consent is being unreasonably withheld, courts can issue orders requiring that a parent consent or dispensing with the need for consent. Courts can also award costs against parents who has unreasonably withheld consent when same has resulted in the other parent having to litigate in order to obtain or dispense with consent.
The question of when withholding consent is reasonable vs unreasonable can be a complicated one. Although Canadian courts have recognized that there can be legitimate concern regarding a child’s safety while visiting politically or socially unstable regions, there is no set list of destinations that are deemed too unsafe.
In determining whether the child should be allowed to travel to a particular region, courts determine what is in the child’s best interest by weighing the risks of visiting such regions against any important benefits the child will gain from the proposed travel. For instance, a court will examine benefits, such as opportunities to establish or maintain connections with the child’s extended family members or cultural heritage. The court will then weigh those benefits against potential risks of traveling to the region, such as likeliness of exposure to violence or crime, political protests or governmental instability, or unavailability of quality health care. Despite any potential benefit for the child, courts are generally not inclined to allow travel that would put the child’s health or safety at risk.
Parents considering whether to provide or withhold consent would be wise to engage in a similar analysis to determine what is truly in their children’s best interests before resorting to litigation.
I hope you found this information helpful. For more information about this or other family law issues, please visit our website or call us at 905-581-7222 to schedule a consultation with one of our lawyers.
Thank you for watching.