The Hammer comes down:
Children are not sofas! /2
Necessary steps to take for divorced parents planning travel with their children
By Linda Hammerschmid
The time of year is upon us when separated and divorced parents start contemplating holiday and winter vacations with their children. Therefore, Part 2 of Children Are Not Sofas will concentrate on some steps to take BEFORE any trips actually take place.
Anytime either parent wishes to travel alone with the children (out of the province/country), minimally, the other parent should be informed beforehand as to destination, duration, contact information such as phone numbers, hotel addresses, and mode of transport. In some cases prior authorization has already been made part of a Judgment, yet one parent can still cause problems. Then a specific Court Order becomes necessary, particularly when you are not the custodial parent who wishes to make travel plans. Authorization is not to be unreasonably withheld and if it is you can contest it in Court. Please do not wait till the eve of departure to ask for Consent or Court Order as you may find out the hard way, if you have already booked the trip, that your expenses are not refundable! I advise always buying insurance in case of refusal by the other parent, but make sure the insurance actually covers this scenario.
Anytime either parent wishes to travel alone with the children… the other parent should be informed beforehand as to destination, duration, contact information…
There are many modes and forms of consent but the best is always in written form. I have seen cases where a parent consents, verbally, to the other going to ‘visit’ relatives only to learn after the fact that the other spouse never had any intention of returning with the children. Or the travelling parent is accused of kidnapping and without a written document it is hard to prove you had consent.
Travel Authorization Forms should set down the information already mentioned above. You should remit the document to the other parent at least 2 months (or more if possible) in advance and give them a fixed date to return the form signed – because if you end up needing a Court Order to travel it is better for all concerned that the request be filed ASAP by you and your attorney. This may take a week, usually more, to prepare and file, and more still to obtain Judgment, particularly before the Holiday Season.
I am including a link (https://travel.gc.ca/travelling/children/consent-letter) to a Government of Canada suggested model letter of Authorization to Travel. For more information you may contact my office.
‘There are many modes and forms of consent but the best is always in written form.’
What is paramount is to commit all the details of the trip in writing in advance – and if travel is by plane, train or boat – attach a copy of the purchased ticket(s) with the agreement, along with the itinerary (although as mentioned above better to get consent before spending your money).
If the travelling spouse refuses to give you this information, you should not consent or sign the form, as anything to do with the children should not be done in secret (save surprise parties!), but you should reply back in writing that you will sign once the requisite information is provided.
You may also seek a Court Order to block a trip – for serious reasons, not simply because you don’t like your ex! Or you can demand to have all the information the travelling parent is refusing to give, and in some cases a security deposit may be requested to cover legal fees in the event of a kidnapping. Your Motion should request that the security deposit be held In Trust by a lawyer as the paperwork involved to get the money back out from a deposit made to the Court is excruciating. One thing sure – while it will cost you legal fees to obtain such orders, it will cost you significantly more to file an International Kidnapping Motion, and that is only IF you are lucky enough to know where your child is – and – IF the destination country is party to the Hague Convention (1980) on International Child Abduction.
This is just a brief overview of the complexities of the Hague Convention and the Travel Authorization Letter – but being safe is always better than being sorry!
Me Linda Hammerschmid is an attorney and has been practicing Family Law since 1982. She is the Senior Partner at Hammerschmid & Associates at 1 Westmount Square, Suite 1290. She is a founding and current member, and past Secretary (28 years) of The Family Law Association of Quebec. She is a frequent guest on CBC TV/Radio, CTV and CJAD, providing commentary on Family Law.
You can also hear her regularly on the CJAD show ‘Passion’ with Dr. Laurie Betito, the last Thursday of each month. She and her dog Mac are members of Therapeutic Paws giving joy to the less fortunate. Me Hammerschmid can be reached at (514) 846-1013 or by e-mail at firstname.lastname@example.org. All inquiries will be treated confidentially.