My spouse and I have just started our family law matter and he/she refuses to let me travel outside of Canada with my child! What do I do?
When both parents have joint custody of a child and sometimes even if only one parent has sole custody depending on the terms, a travel consent is required to show that the child who is either travelling alone, with only one parent/guardian, friends, relatives or a group (e.g. sports, school, musical, religious) has permission to travel abroad from every parent (or guardian) who is not accompanying them on the trip.
Although there is no Canadian legal requirement for children to carry a travel consent, a travel consent may be requested by immigration authorities when a child is travelling abroad. Failure to produce such consent upon request may result in delays or refusal to enter or exit a country. Please note that it is highly advised that even in situations where a parent has full/sole custody, they obtain a travel consent from another parent who has access rights (also known as visitation rights).
So what happens in a situation where a travel consent is required for a parent to travel with their child without the other spouse (i.e – when both parents have custody) but the non-travelling spouse refuses to consent? The only court appearance that will decide if the child is able to travel is a Motion. In these situations, a judge will evaluate the matter even though one of the child’s parents refuses to consent to the trip. However, please be mindful that Ontario legislation does not allow a motion to be brought prior to a Case Conference or first court date except where the matter is urgent and meets the “test of urgency”. If a Case Conference (a meeting between the spouses, their lawyers and a judge to discuss the issues that need to be settled) or first court date has not occurred yet, then a Motion will not help you travel with your child. The only way a Motion can be heard prior to a Case Conference or first court date is by bringing an urgent Motion.
The law allows for urgent motions in situations of urgency or hardship, such as an issues of immediate danger, health or safety that cannot wait until after a case conference or first court date. Currently, there is no clear-cut test for urgency and the circumstances are judged on a case by case basis. However, if one party can demonstrate and convince the court that travelling with the child or restricting the child from travelling meets the test of urgency, then they can be successful in bringing this type of Motion.