Fact Sheet: Mobility - Moving with the Children

Publication Date: 
2012
Resource Origin: 
Springtide Resources

by Pamela Cross, LLB

It is not uncommon for a woman to want or need to move to a new community after separating from an abusive partner. 

She may need to do so for her own safety if her former partner remains abusive and threatening after separation.  She may have better employment opportunities elsewhere or she may wish to live closer to her family to have their support.

What if he consents?

If her ex-partner consents to the move, the woman is free to move with the children, but she should get his consent in written form, preferably as a clause in the custody agreement or order or, if there is already an order in place, an amendment.  This will make it more difficult for him to change his mind later or to pretend he did not consent.

What if he does not consent?

If he does not consent, the woman will need to go to court, where she will have to prove to the court that the move is in the best interests of the children, that she is not moving just to interfere with the father's access and that she will make extra efforts to support access with him across the longer distance.

This could include allowing longer visits during the school holidays, paying part of the cost of the children's travel and/or paying for long distance calls between the children and the father.

Do I need permission if I have sole custody?

Yes. As long as the father has access, he must consent to a move or the court must order it.  However, considerable deference will be given to the wishes of the custodial parent for a move as long as it is in the best interests of the children. 

What about taking the kids outside of Canada? 

Many women have concerns about an abusive ex-partner removing children illegally from Canada.  This is especially so for women whose partners have family, resources, assets and other connections to another country.

There are also situations where the custodial mother may wish to be able to travel outside Canada with her children.

How do I take my kids out of the country legally?

There are a number of ways to ensure that it is relatively simple to take children outside Canada for a vacation or to visit family.

The custody order can state that the parents both consent to some travel outside Canada.  It can set out that the parents agree to provide one another with a Statutory Declaration to facilitate crossing borders.  The order could also make it a requirement for the parent who is traveling to provide a detailed itinerary to the other parent and for the other parent to provide documentation such as the child's passport, birth certificate and health card to the parent who is traveling.

The parent should have certified copies of the custody order to present to border officials to facilitate travel.

What is a Statutory Declaration?

A Statutory Declaration is a document that the non-traveling parent prepares, confirming her/his consent to the trip.  It needs to be signed by the parent and commissioned by a Commissioner of Oaths.

It would clearly identify all the parties, refer to the custody order where appropriate and provide general information about the trip as well as contact information for the parent signing it.

The traveling parent carries the original on the trip to be produced along with the child's identification and the custody order at any border crossings.

What can I do if I am afraid my ex-partner will take the kids out of Canada?

It is more difficult to protect against the illegal movement of children, but there are still steps that can be taken.

The custody order can state that international travel is prohibited and can require either or both parents to surrender their and the child's travel documents (passports, visa, etc.) to the court.

If the woman thinks her husband might try to leave the country with the children, she should obtain a number of certified copies of the custody order.

She can contact the passport office to have a passport alert issued, which would create a "red flag" if anyone tried to apply for a passport for the child.  This phone number is 819 994 3539.

If she believes the father is taking the child out of the country through the United States, she can ask for an American border alert to be issued by calling 613 990 8585 or 613 993 5959.

The federal Consular Affairs Bureau offers emergency assistance 24 hours a day, 7 days a week at 1 800 382 3124 or 1 800 267 6788.

What is the Hague Convention?

The Hague Convention is an international treaty signed by 75 countries that have agreed to cooperate in finding and returning children who have been illegally moved across international borders. 

There are a number of limitations to what the Hague Convention can do, and using it can be expensive.

If a child has been removed to a country that has not signed the Convention, the mother would have no official state support for her attempts to locate her child or have the child returned to her.

This Fact Sheet contains general legal information only.  It is not a legal document, nor is it a replacement for legal advice.  Anyone in a situation involving family, immigration or refugee law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes.  A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.

For information about finding a lawyer in your community, contact Legal Aid Ontario at 1 800 668 8258 or 417 979 1446.

You can also visit Legal Aid Ontario online at www.legalaid.on.ca/en/locate/default.asp

Copyright 2012 Pamela Cross. Original development of this resource was funded by The Law Foundation of Ontario.