Travelling with Children
The subject of travel with children (under the age of 18 in Ontario) comes up frequently in my work as both a family law lawyer and family mediator. That is because quite naturally, most separated parents want to enjoy traveling with the children and build new memories.
As a family law lawyer, I am often approached by my clients on this issue., either because they want to take a trip themselves or because the other parent does. At that point, we need to determine whether this will be a smooth exercise of simply filling out the required travel consent forms (more about this below) or whether there is some issue with one parent disagreeing with the idea that the other would travel with the kids.
As a family mediator, I also tackle this subject from time to time, helping parents with dialogue about proposed trips or by working with them on those parts of their Parenting Plan. that contemplate future trips and the logistics around them.
In the most common instance, parent A wants to take a trip with the kids and the other parent agrees. In such a case, we have the traveling parent provide to the other sufficient details about the trip so that the non-travelling parent knows where the children are going, where they are going to stay and how they can be contacted while away.
There is also the issue of the travel consent but that does not have to be complicated, and when tackled in an organized way, in solid advance of the trip- it should not be a problem at all. What am I talking about here? It is highly advisable that a separated parent traveling with a child or children outside of Canada obtain from the other confirmation, in writing, that the non-travelling parent knows about the trip and approves it. Essentially, these Travel Consent Letters, as we often call them, signal to the Canadian border authorities, airline agents and foreign governments that yours is not a case of child abduction, if you have the consent of the other parent in hand.
Are these consents mandatory? Are they essential? Do you have to get one from the other parent? The answer is no - they are not mandatory but I highly recommend them, as do many of my colleagues, because the Canadian border authorities reserve the right to turn you and your kids around if you do not have one. And of course, we have no control at all over foreign governments and authorities. They also retain the ability to impact your trip in any way they see fit. And if you do not have the letter and they require one, you will not be allowed in. I recommend these Travel Consent Letters irrespective of who has decision-making responsibility for the children (formerly called custody). There is no prescribed form for the letter but we have been provided by the Government of Canada with a suggested template. I talk about that further in this post.
Scenario #2 involves a situation where one parent wants to travel and the other does not agree. If negotiations with the assistance of lawyers or even a family mediator do not help, do not solve the problem, then you might have to involve the family court and get an actual court order permitting you to take the trip with the kids. There are many reasons the non-travel parent might object- some compelling, others purely emotional. But again, if the parents cannot agree, the court will have to resolve the issue (or an arbitrator selected by the parents).
How do courts make decisions about proposed trips with children? The court will apply the test of “best interests”. In other words, when facing an issue related to a child or children, the judge will ask him or herself: “Is what is being proposed in the child's or children's best interests?” While the test may sound very open-ended and broad, the actual consideration of best interests is very contextual. In other words, the answer depends on the specific facts of each particular case and on the kids themselves. The inquiry is always from the perspective of the children and not based on what either parent wants. Because decisions related to travel are so very family and fact specific, a similar trip may be approved by one judge but disallowed by another, depending on how that trip would impact particular children. To use a basic example, children with special academic need would likely have more difficulty catching up with the curriculum if they missed four days of school than would children who have no academic issues.
If you are interested in a more depth-in depth discussion of the subject, have a listen to an episode of the SANE SPLIT podcast I devoted specifically to travel with children. You will find it here. On the episode page, you will also find a link to the recommended travel consent form.
©AJJakubowska