TRAVEL BY THE CHILD

Non-Removal Orders

An order may make provisions as to whether a child can be removed from a specified area.  Sometimes an order will provide that a party cannot remove the child from Canada, without the written consent of the other party, but such consent shall not be unreasonably withheld.  Such orders are usually made when there is a risk that the child will not be returned to their home in Canada or that the child will be put at risk on the trip.

 

[This is different that an order restricting where the child resides.  See my article on moving.] 

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Who Needs Authorization by a Parent to Travel?
Under Canadian law, a parent must authorize travel outside Canada if a child is under sixteen (16) years of age.  In other countries, this age may be different.  

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Many jurisdictions (locations) are concerned about child abduction. How strict the rules are, or how they are applied, depends on the jurisdiction, the details, and the people involved. Boarders can be unpredictable.

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Who Can Authorize Travel?
The person having the authority to make decisions regarding the child must authorize travel and take steps to prevent children from traveling out of the jurisdiction without proper authorization.  Some jurisdictions may require both parents to give their authorization, unless there is a court order or formal agreement.

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If the parents have not separated, one parent might be able to authorize travel.  However, there will be a problem if the other parent does not consent.  It is safer to get both parent's consent.

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If the parents are separated, then you will need:

• both parents consent;

• a written agreement (e.g. a Separation Agreement); or

• a court order

 

What Proof of Authority & of Authorization Do You Need?
Documents may be required by:

• the country the child is entering;

• (sometimes) the country the child is leaving;

• (often) the airline (or other transport company) that the child is traveling on.

 

How strict the rules are can vary greatly.  To avoid last minute problems, inquire with the governments and with the airline(s).

 

The safest policy, if you do not have an original copy of the document giving you exclusive authority over travel by the child (and a translation if necessary), is to have a notarized a copy of the consent form signed the other parent (properly worded).

 

Canadian Foreign Affairs have a recommended form (it is available on their website).  Lawyers have their own forms.  They are usually sufficient.  But some jurisdictions are unpredictable.  Be particularly careful of countries that have very different laws about family disputes and children.

 

Who Requires Documents to Travel with Child?
Anyone who I have to travel with the child should be given authorization.  Plans can change.  For example, this would mean that if the child is traveling with one parent, an adult sibling, and a grandparent, the safest option is for both parents to authorize travel by any of the three adults accompanying the child.

 

Each child should have their own document, in case they have to travel separately. Even when traveling with both parents, the child's birth certificate listing his or her parents should be brought.

 

What is the Timing Issues?
Get the consent and any other documents before you pay for the trip.  It can take many months to get an order from the court, if you do not get a proper written consent from the other party.

 

What about Foreign Laws and Conditions?
Many countries have similar family laws and cooperate with each other about children. However, some countries have very different laws and may ignore court orders or agreements from Ontario. Some locations have serious problems with corruption and inequality, or have very limited law enforcement. Know the places you are taking the child to. Be especially cautious of places where a parent (with whom you may be in conflict) has power or influence.

 

Ontario lawyers cannot advise you about the risks that may exist in other countries.

 

If there is any risk that a child may be held in another country, get legal advice before it happens.

 

Do You Need a Lawyer?
A consent form should be notarized and this means a lawyer.  A careful lawyer will ask questions before notarizing a consent for a child to travel, and not treat this as a simple notarizing of a document.

 

If there is reason to be careful (because of you own limitations, the nature of the place you are traveling to, or the nature of the other parent), get a lawyer to draft the consent and give you advice.

 

Note that lawyers generally cannot keep track of the rules of other countries and the various airlines.  They will likely not give advice about this, unless you pay them to make inquiries for you.