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Travel Consents and Court Applications

Kasey Anderson

What happens when one parent wants to take a child on a vacation, but the other refuses to provide consent?

Some common objections to a parent’s request to travel are as follows:

  1. there is a risk that the child will not be returned;
  2. there will be disruption to the child’s education or life in general;
  3. there will be disruption of access for the parent not traveling; and
  4. the proposed location of travel is not safe.

As in all decisions concerning children, the Court in hearing an application for travel must consider whether the proposed travel is in the best interests of the child.  Generally, unless the parent in opposition can provide compelling evidence to the contrary, travel will be found to be in the child’s best interests and the application will be allowed. However, the analysis becomes more complicated, and arguably more political, when concerns of safety risk or abduction are raised.

When the spectre of abduction is raised, the Court will look at a number of factors to determine whether there is sufficient evidence to support this as a concern. Factors such as whether the proposed destination is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, whether the government is compliant with the Hague protocols, whether there have been threats of abduction in the past, and generally whether there is evidence indicating that abduction is likely or unlikely, based on the traveling parent’s circumstances including employment, residence and family, will all be relevant.

When the concern of the child’s safety is raised, the Court will weigh whether the potential danger is overcome by the potential benefit to the child. Evidence that will often tip the scales in favor of denying the application includes evidence regarding political unrest, terrorism or high crime in the proposed destination of travel.

In JJCK v MNN, 2019 BCPC 63, the Court considered the mother’s application to travel with her child to the Philippines, which was opposed by the Father. The Court dispensed with the father’s concern of abduction, as the Philippines is a signatory to the Hague Convention, but found that the safety risks present in the proposed region of travel outweighed the benefit of the child being exposed to his heritage, culture and extended family. In this case, what appeared to be the most compelling evidence was a travel advisory from the Government of Canada, which recommended “avoiding all travel” to the Mindanao region of the Philippines due to the serious threat of terrorist attacks and kidnapping.

Ultimately, for any parent wishing to take a child on vacation, it is advisable to be as prepared and provide as much notice as possible. Detailed travel plans, including details of flights, accommodation, mode of transportation, activities, and a plan for maintaining contact with the other parent, will often go a long way to assuage any concerns the other parent, or the Court, will have with a proposed trip.

2021-05-17T21:14:33+00:00November 21, 2019|Family Law|
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