We’re in the cold, grey and sloppy phase of winter in Ontario. March Break is approaching. Now there’s news of escalating violence at a very popular Canadian winter getaway. This could be a recipe for disaster for separated parents with vacation plans.
What happens when parents can’t agree whether travel with one parent is in a child’s best interests?
In most cases, whether or not there is a separation agreement in place and often even if one parent has sole decision making (or what was once called “sole custody”) both parents’ consent will be required for children to travel outside of Canada.
If parents don’t agree, the travelling parent might have to ask a court to make an order dispensing with the non-travelling parent’s consent.
The standard is always whether it is in the children’s best interests to travel to the country in question.
In determining whether travel presents too great a risk for children, courts will be looking for solid evidence. A parent’s general fear of danger in a destination with unrest is not going to be enough. Courts are looking for objective, destination-specific evidence and will consider whether the proposed itinerary avoids dangerous areas and mitigates risk.
As an example, are there travel advisories? The Government of Canada lists travel advisories at https://travel.gc.ca/travelling/advisories. If the proposed destination reveals an “avoid all travel” or “avoid non-essential travel” expect a court to weigh this heavily against parent wanting to take children on a discretionary vacation to the destination.
Where the travel advisory is “exercise a high degree of caution” or the risk is limited to very specific areas in a country a court is more likely to allow the travel provided the parent can show they have plans to avoid the danger zones and take steps to minimize any risk.
As an example, in a 2003 case where a mother asked the court for an order permitting her to travel to Israel with the children for approximately three weeks (and where a previous order provided either parent could travel outside Canada with the children with the other parent’s consent, which consent would not be “unreasonably” withheld), the court allowed the travel stating that the father’s evidence did not establish that there was a risk that Israel was too dangerous a place for the children.
In that case the father’s evidence included “graphic and unsettling” pictures and reports of terrorist acts and warnings that people do not travel to the West Bank and Gaza, where the mother did not plan to travel. It was relevant that the mother was born in Israel and the family had travelled back there together five times with the children in the past, and that the mother was travelling again with the children to visit extended family.
Justice Magda, in that case, focused on the family’s connection to the region and the fact that they had routinely travelled back to visit family, and found that there had not been a significant escalation in violence since those previous visits.
A court may well make a different decision where a parent is taking children for a winter beach vacation, and where there is a new and significant escalation in violence.
What does all this mean for that March Break trip to Mexico? It depends.
One thing is certain. Travel motions cost time and money and can be very stressful for both parents and children. As always, it’s best if parents can work together to make decisions in the children’s best interests before these disagreements end up in court.