The sun is shining and Victoria Day weekend has passed, it feels as if summer is upon us. In just about a month, children will be receiving final report cards and summer holidays will be here. In the past, summer has been a period of travel and excitement for you and your family, but this year is different. You and your wife or partner have recently separated or divorced. You still want to enjoy holidays with your child or children but you are wondering, can you? Are there steps and protocols that must be in place before you do? What if you ex doesn’t want you to go away with your child, or have much time with them at all – then is planning a holiday with your kid(s) a hopeless exercise?
As in any separation or divorce, issues relating to parenting time and arrangements (and custody under the Divorce Act) are very specific to your unique set of circumstances. If these questions about travel, or parenting time in general, are on your mind, it is recommended that you consult with a family law lawyer to discuss your specific circumstances.
Both the Divorce Act of Canada and the Family Law Act of British Columbia (the “FLA”) encourage parenting arrangements that provide children maximal contact with both parents. The best interests of the child are always paramount and the law seeks solutions to parenting arrangements after separation that provide for the least possible disruption to the children’s lives and routines. As such, in most cases, you will be able to continue to holiday and travel with your kid(s) notwithstanding the fact that your ex-spouse will not be joining you this time. Exceptions will exist however and are most likely to arise where there are allegations of family violence or child abduction (i.e. legitimate fears that you will not return home from travels with your children).
It is imperative that you communicate travel plans with your ex-spouse and attain his or her agreement. Under the FLA parents remain guardians after separation and divorce. Section 40 of the FLA provides that each child’s guardian may exercise all parenting responsibilities with respect to the child in consultation with the other child’s guardian, unless consultation would be inappropriate in the circumstances or there is an agreement or order that re-allocates specific responsibilities. It is prudent to attain the agreement regarding travel plans in writing. The agreement should include certain protocols, including but not limited to travel iteinerary(s), emergency contact information, consents to travel (for airlines and international borders) and passport possession.
It is further recommended that you and your ex-spouse have your lawyers prepare an Interim Cross-Border Travel Agreement laying out protocols noted above as well as clear processes for communicating travel plans and other important details. Such a travel agreement helps minimize future disagreement and conflict with respect to this issue.
If you and your ex-spouse cannot agree to travel protocols or your ex-spouse refuses to agree to travel arrangements, you should consult with a lawyer. Negotiation, mediation or a court application may be necessary. It is not recommended that you attempt to travel without attaining consent or try to conceal the whereabouts of your kid(s) from your ex or you could face a claim of child abduction under the Hague Convention. However, if your ex-spouse is found to be unreasonably withholding his or her consent for you to travel with your children, the court will likely order that consent must be given or provide you with the necessary authority to travel without consent. Since the courts encourage cooperation between parties with respect to the children, the court may also order costs in your favour.