by Leila Sadeg, LL.B., and Geoffrey Ngamilu, LL.B., DESS, LL.M.
Twas the week before Christmas, when all through the home,
Anticipation grew, next week the grandchildren would come!
The menorah by the window, the tree by the sofa right there;
Whether it was Christmas or Chanukah, nobody did care!
The presents were wrapped, and the guest rooms prepared.
Finally! a family reunion, courtesy of modern aviation;
But then the phone rang and angry tidings left us scared,
Our own child’s “Ex” was withholding authorization!
“What a disaster! Because of the divorce, it had been years since the grandkids were able to visit. Even once things finally settled down, holidays still had to be shared with the ‘other’ set of grandparents. But now, it was our turn! And what? Just a week before the flight, the grandkids cannot get authorization to travel? That is unacceptable!”
And so go the phone calls that we begin receiving around this time of the year, every year, year-after-year.
Unacceptable? Perhaps, but all too common. When traveling with only one parent, children usually need a travel authorization from the other parent. And sometimes, rightly or wrongly, that other parent refuses to grant that authorization. Quebec Courts have held that a parent’s consent must not be withheld unreasonably. A parent cannot withhold a travel authorization for the children solely for the purpose of maintaining power and control over them and the other parent. The Courts have generally condemned this arbitrary use of power and authorized the other parent to travel with the children or be dispensed from having to obtain such an authorization.
So what can do you do if at the last minute you are unable to obtain for the children their authorization to travel? You can go to court with an emergency application for safeguard measures authorising them to travel. Can the grandparents file such an application?
Under certain circumstances, the answer is “yes”. (For more details about grandparents’ rights, we invite you to refer to this column in the July 2018 issue of the Senior Times.)
In determining whether a child should be authorized to travel abroad, the Courts look at what is in the child’s best interest. If the purpose of the travel is an opportunity to establish or maintain connections with the child’s extended family members, and especially the grandparents, then the authorization to travel is likely to be granted by the Court.
There are of course, times when a parent can and should refuse to authorize travel.
The Courts are understandably reluctant to allow travel that would put the child’s health or safety at risk. This can be for objective reasons such as travel to countries where the child could be exposed to violence or crime, political instability, or the unavailability of quality health care.
A parent’s refusal to authorize travel may also be upheld by the courts for subjective reasons such as the risk of abduction by the traveling parent. In such cases, the courts may look at the traveling parent’s behaviour and circumstances and possible motives to take the law into their own hands. One important factor to consider will be whether a country has or has not signed international treaties such as the Hague Convention on Civil Aspects of International Child Abduction, which protect children from kidnapping by their own parents. (The U.S. and Canada are both signatories.)
The Court will consider the child’s best interest by weighing the risks of the visit with any important benefits the child will gain from the planned travel. If the refusal to grant authorization is deemed unreasonable and has resulted in litigation, the Court can even in some cases award costs against the parent who unreasonably withheld consent. Trying to be a Grinch just so as to ruin other people’s much-anticipated holiday can backfire.
Leila Sadeg and Geoffrey Ngamilu are attorneys with KALMAN SAMUELS, a family law firm. For this article, Clement C. Moore’s classic poem was adapted by Daniel Romano, Attorney. We invite you to follow us again in 2020 in The Senior Times’ March edition.
Dear Reader, these articles are published in order to provide you with general information about interesting legal topics, not as a legal opinion. Please do not hold the author, KALMAN SAMUELS, Attorneys, or The Senior Times liable for any consequences arising from any attempts to rely on this material. If you need a legal opinion for a specific matter, we recommend that you consult with a qualified attorney.