Usually, judges let parents travel with the children, unless the trip presents some sort of danger - such as travel to a war zone or where there is a worry that the travelling parent will not return to Canada with the children. Judges do tend to be very cautious about allowing travel to countries that are not party to the Hague Convention on the Civil Aspects of International Child Abduction. Aside from that, and travel that is dangerous in some way, judges usually believe that travel is beneficial to children and helps them grow. So, they allow it, unless there is a GOOD and PROVEN reason not to permit it. (With the exception of "non-hague travel" the refusing parent should not base the refusal on groundless speculation.)
For more on the law of travelling with kids after separation, see this page.
14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings
15 - Family Court Step by Step - Part 2 - From First Appearance to the last appearance before trial
If the other parent is not refusing for a good reason, then you will have to go to court to get a judge to approve the trip. (Unless you have a parenting coordination or family arbitration agreement that simplifies the process - see this for a little more.) Watch the video below on the family court process, or listen to the Ontario Family Podcast episodes on the court process. If you are going to court, you will probably also want to get a copy of the book below as court can be complicated.
Evan what form you use to go to court to get an order allowing the trip depends on whether you have an existing parenting order or agreement, and whether that parenting order or agreement addresses out-of-country travel and has terms that require parents to permit to such travel either absolutely or under certain conditions.
- If there is no existing parenting order or agreement that addresses travel, then you to start a new court application (Form 8) and then bring a motion (Form 14) with a supporting affidavit (Form 14A).
- If there is an existing parenting order or agreement but the travel provisions are inadequate, or do not address the current situation, then you need to bring a Motion to Change, the forms for which are all under Rule 15 (and are numbered Form 15 followed by a letter). If it is an agreement, not a court order, then you need to file the agreement with the right court first, using Form 26B.
- If there is an existing court order, and the other parent is not following it, then you just need to bring a motion using Forms 14 and 14A.
- Finally, if there is parenting agreement this is not being followed, but no order, then you can file the agreement using Form 26B and then bring a motion to enforce the agreement using Forms 14 and 14A.
Even a straightforward court appearance to get permission to travel can be a very expensive. However, if the other parent is unreasonably refusing to give travel consent, judge are prone to order them to pay most or all of your legal fees associated with getting the permission to travel.
To ensure that you get to go on the trip, it is best to get a lawyer to put your case together for you and present it to the judge in a way that will make the judge very sympathetic to you and allow the trip. A good lawyer will also fight to get your fees back in these circumstances. To contact Certified Specialist in Family Law, Toronto Family Lawyer, John Schuman, call 416-446-5869, email him, or use the form below the comments. We answer all inquiries promptly.
For more on travel consents, other child custody and access matters, a description of the court process for these types of issues, and a longer description of the alternatives to court, get a copy of this best-selling easy-to-understand book on Ontario Family Law. You can get it and start reading it in minutes for $9.99 from the Canadian Kindle Store, Kobo, or as an iBook for iPad, iPhone or Mac, or you can order the paperback. It also covers many other family law issues and provides lots of tips for staying out of trouble and getting what you want in family court cases.
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Kenneth Phillips - Law Office of Kenneth J. Phillips
I agree with all of your answers John, the links you posted will be very helpful for the parent seeking help. I also suggest that the parent should consult with a professional as to not drag this out for too long and avoid the same problem in the future.
Susan Donofrio - Director of Staff Development at Legal Aid Society of Columbus
Typically the parent would file a motion with court asking to be named the sole parent with authority to obtain passports and travel outside the country with the children. The entry should track the passport office regulations exactly, if you are successful.
Jarrod Jennings - JENNINGS & MEDURA, LLC.
I've unfortunately had to deal with this issue twice. We had to file an expedited motion and pushed for fees and sanctions. The Court admonished the parent who refused to sign and indicated that it may be a basis to remove his joint legal custodial rights altogether in a petition to modify if the conduct continued.
Still, it's a very difficult issue and the airlines are black and white about it- no permission, no fly.
Marluce de Oliveira - Senior Attorney
This used to be a considerable problem in child´s guardian ! Very annoying !! oftently the refusing to sigh the travel request is only a caprice !!! Vengace !!! Sometimes, problems with child support !!! I dare to suggest a modification on the visitation agreement just to include that the other party has the right to travel with the children during its visitation time and that unjustified refusing should be discuss before a trial court, always, on behalf of the children but, never bring them against the willing of the other parent party due to psychological trauma risks suffering.
Lisa Marie Vari - Managing Attorney at Vari & Associates, Pittsburgh & Miami Divorce & Family Law Lawyers
Cases like this one come up all too often in my Miami office. We have many parents wishing to take their children out of the country to visit family and the other parent refuses to grant permission. Sometimes the refusal to allow the kids to travel is due to fear that the other parent won't return with the child (something we've sadly had to deal with), but most times the other parent is just being difficult.
When faced with this situation a parent's best bet is to contact the attorney that represented them during their previous child custody or divorce case. Depending on the situation a motion may be the best way to resolve the issue.
Elliott Yug - Attorney
I had this situation and filed a motion authorizing my client to obtain the passport and for travel. At the hearing the other parent indicated they had no problem signing the application for the passport and out of the country travel. Thereupon I presented the Court with an order to that effect and we were done.
Abdel Hakim Benalah - Juriste (Algeria)
Quand l’un des parents(généralement la mère) qui lui a été attribué le droit de garde et tutorat et refuse à l’autre de lui signer une autorisation de sortie hors territoire et lui remettre le passeport de l'enfant, ce dernier doit formuler une demande d’autorisation muni d'un procès verbal dressé par un huissier de justice portant refus express de la mère de l’autoriser a sortir avec son enfant à l’étranger et refus de remise du passeport doit se présenter devant le juge ou le président du tribunal territorialement compétent du lieu ou s'exerce le droit de garde et le tutorat.
Mais si la mère ne lui est pas attribué le droit de tutorat que le droit de garde n’a pas le droit en aucun cas de s'opposer à cette autorisation car elle peut s'exposer aux sanctions d'avoir refuser de remettre un enfant à celui qui a le droit de visite et refus d’exécution d'un jugement vêtu de la formule exécutoire. Bonne chance.
Abdel Hakim Benalah - Juriste (Algeria)
When a parent refuses to sign the authorization of release of her child which he has the right of custody is or not, outside his country the other parent must make a request and reasoned order from judge of the place where is exercised the right of custody and that will decide emergency.