Travelling Abroad With Your Child After Separation in BC: Consent Rules

You have a trip planned, perhaps a family visit overseas or a holiday, and your child's other parent lives separately. You may be wondering whether you need their permission, what to put in writing, and what happens if they say no.

The answer depends partly on British Columbia's Family Law Act and partly on rules you will not find in it, such as those set by airlines and border officials. This article explains how the pieces fit together so you can plan early and know when to get legal advice.

This article covers the law of British Columbia.

Does BC law require the other parent's consent to travel?

Whether you need the other parent's consent depends on your agreement or order, your destination and your airline. How this applies to your trip is worth confirming with a lawyer.

Consent is not irrelevant. Separation does not end a parent's guardianship, so each parent is generally still a guardian after separating. An agreement or order made around separation can say otherwise. Whether a parent is a guardian, and what your agreement or order says about travel, is the first thing to check.

If you are a parent who never lived with the child, you may not be a guardian unless an exception applies, such as a written agreement naming you or regularly caring for the child. A non-guardian parent can still have contact but has no parental responsibilities.

Passports and parental responsibilities

Applying for a child's passport is one of the parental responsibilities listed in the Family Law Act, so it falls to guardians under whatever allocation an agreement or order sets out.

Unless an agreement or order says otherwise, each guardian may exercise all parental responsibilities after consulting the other guardians, unless consulting would be unreasonable or inappropriate. Responsibilities can also be given to certain guardians only. So the practical questions are:

• Does your agreement or order say who handles passport applications or travel?
• Does it say anything about notice or consent for trips outside Canada?
• Is the trip within your own parenting time? During parenting time a guardian may make day-to-day decisions unless the agreement or order says otherwise.
• Does the child already have a valid passport, and who holds it?

What a consent letter should say

A signed letter from the other guardian is a common way to answer questions from airline staff or border officials. Check the destination country's rules and your airline's policy before you travel, because they may ask for more or less than you expect.

• The child's full name, date of birth and passport number
• The full names and contact details of both parents or guardians
• The traveller or travellers accompanying the child
• The dates of departure and return
• The destinations and, if known, the flight or accommodation details
• A clear statement that the other parent consents to the trip
• The signature and date of the consenting parent, ideally witnessed or notarized if the destination or airline asks for it

Keep copies of any court order or agreement that shows your parenting arrangements, and carry them with the letter.

If the other parent refuses consent

If consent to travel is refused, a guardian can apply to court for an order deciding the issue, either as a direction under s. 49 or as a parenting order under s. 45. The court decides on the child's best interests only. Factors include the child's health and emotional well-being, the history of the child's care, the child's need for stability, and any family violence.

There is no automatic right either way, because no particular parenting arrangement is presumed to be in the child's best interests. The child's views are one factor, considered unless inappropriate, and the Act sets no age at which a child chooses.

In Provincial Court, you generally must complete the Parenting After Separation course before an application moves forward, unless you are exempt. In Supreme Court the course is not mandatory, though a judge may suggest it.

Concerns about the child not coming back

If you are the parent worried about a trip, a court can order that a person not remove a child from a specified geographical area. If it is satisfied that someone proposes to remove the child from BC and is unlikely to return, it can order security, surrender of passports and travel records, and other steps.

A permanent move is a different matter from a holiday. Relocation is a change in residence that can reasonably be expected to significantly affect the child's relationship with a guardian or other significant person, and it has its own notice rules. Those relocation rules apply where a guardian plans a relocation and a written agreement or order on parenting arrangements or contact applies, and in that case the guardian must give other guardians and contact persons at least 60 days' written notice, with limited exceptions. If no agreement or order applies, a different section of the Act governs a guardian's planned change of the child's residence.

What to do next

• Read your separation agreement or parenting order for any travel, passport or notice terms.
• Ask the other guardian early, in writing, and give the dates and destination.
• Check the airline's and destination country's current requirements.
• If you cannot agree, get legal advice well before booking non-refundable travel, since court applications take time.
• If you are worried about safety or a child not returning, speak to a lawyer promptly about your options.

Frequently asked questions