How to Travel Abroad With Your Child After Separation in BC

Taking a child abroad is usually simple when parents get along. After a separation it can raise hard questions: do you need the other parent's agreement, what if they say no, and what happens if a child is not returned?

This article explains how British Columbia law generally approaches those questions. Every family's agreement or order is different, so read yours closely and get legal advice before you book anything non-refundable.

This article covers the law of British Columbia.

Start with guardianship and your existing paperwork

Under the Family Law Act, each parent is a child's guardian both while living together and after separating. Only a guardian may have parental responsibilities and parenting time for a child.

There are exceptions. An agreement or order made after separation may provide that a parent is not a guardian. A parent who has never lived with the child is not a guardian unless a parentage provision applies, all the guardians agree, or the parent regularly cares for the child. A new partner of a guardian does not become a guardian only by marrying or entering a marriage-like relationship with that guardian.

Next, read any separation agreement or court order. Terms about travel, passports or where the child may be taken can matter more than anything else on this page.

Is a trip the same as a relocation?

The formal notice rules apply to relocation. Under the Family Law Act, a relocation is a change in the residence of a child or guardian that can reasonably be expected to significantly affect the child's relationship with a guardian or another significant person. A holiday with a planned return is generally a different thing, but a move abroad could be a relocation.

If a relocation is planned and a written agreement or order about parenting arrangements applies, a guardian must give every other guardian and every person with contact at least 60 days' written notice of the date and proposed location. For a short trip, your agreement or order may have its own travel terms, so check them.

Passports for children

A passport for a child under 16 may be issued to the child's parent, the custodial parent if the parents are divorced or separated, or the legal guardian. It will not be issued where a court order or separation agreement gives the non-custodial parent access rights, unless the application includes evidence that issuing it is not contrary to those terms.

• Canada.ca says all parents or legal guardians should sign the child's passport application, and Service Canada may contact the other parent.
• If both cannot sign, the applicant must contact the Passport Program for instructions.
• A separated or divorced applicant must submit all legal documents with custody, decision-making, access, parenting time or mobility clauses, including any passport clause.

If the other parent refuses or you fear a problem

If you cannot agree, talking or using mediation first is often quicker than court. If that fails, a guardian can apply to the court. Do not simply take the trip or withhold the child, since either choice can create its own legal problems.

• If parenting time or contact is denied, you can seek a court order, and an application about wrongful denial must be made within 12 months after the denial.
• Denying parenting time is not wrongful where the guardian reasonably believed the child might suffer family violence.
• If you worry a child will be taken away, a court may order that a person not remove the child from a specified geographical area.
• If the court is satisfied someone plans to remove a child from BC and is unlikely to return the child, it may order security, surrender of passports and travel records, or other steps.

If a child is not returned

BC's Attorney General is the Central Authority under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which has the force of law in BC. It applies only to children under 16 and only between countries that are both parties. It decides where the custody case is heard, not custody itself.

A parent seeking return from abroad contacts the BC central authority, which supplies the application form and sends it with supporting documents to the authority abroad. Applications are more likely to succeed if filed within one year, though returns are sometimes ordered later. This is urgent, so get legal advice quickly.

What to do next

• Read your agreement or order for travel, passport and notice terms.
• Ask the other parent in writing, with dates, destination and return plans, well ahead of booking.
• Keep copies of every message and document.
• Check current passport requirements on Canada.ca.
• Speak to a family lawyer if there is a refusal, a safety concern or a risk the child will not return.

Frequently asked questions