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Can I take my children out of Canada without obtaining my ex-spouse's consent?

As a Divorce Lawyer practising in Calgary, a question that I am frequently asked is: Am I allowed to take my children out of Canada without first obtaining my ex's consent?

There is a very straightforward answer to that question: No, unless you first obtain a Court Order permitting you to do so, or if you have sole custody of your children, and there is not a Court Order that contains a term preventing you from removing them from the jurisdiction.

For the purposes of this discussion I will assume that the parents have joint custody and there is no Court Order that already permits that which the parent wishes to do.

Typically, the question comes up when a parent wishes to take the children on vacation. It also comes up when a parent wishes to relocate to another country.

In both cases, every lawyer should offer the same advice - discuss the situation with your ex first and see if you can persuade them to allow the children to go. If your ex is not willing to provide consent, you must make an Application to the Court for an Order permitting you to remove the children from the jurisdiction.

For vacations, while there is not normally an issue at the border when leaving the country with the children, CBSA officers will normally stop lone parents travelling with their children when they return to Canada and ask them to produce a "Consent Letter" that has been signed by the other parent allowing the vacation to occur. No-one has ever been able to explain to me why CBSA monitor those arriving, but do not monitor those leaving. It would appear to be counter-intuitive!

The Federal Government's website explains the process here.

Unfortunately, it is not unusual for parents to refuse to allow their children to take a trip with the children outside of Canada. While this could be reasonable if, for example, the parent wished to take the children to a war zone, all too frequently it happens when a parent simply wishes to take children to somewhere like Disneyland. In such a situation, if a parent makes an Application to a Court for an Order allowing them to take such a trip, the Court will almost certainly grant such an Order and will likely order the costs to be paid by the parent that refused their consent.

In the case of a parent wishing to relocate with the children to another country against the wishes of the other parent, an Application to the Court will be required and, if the country to which the parent intends to relocate is a signatory to the Hague Convention, the parent that wishes to relocate will be best advised not to relocate until the Court has given them permission to do so.

If the parent ignores this advice, the Central Authorities will act very quickly to have the children returned to Canada, so that a Court in Canada can deal with the parent's actions. The bottom section of this website provides information as to how such an Application will be dealt with in Alberta.

If you have any questions regarding the above, or if you would to contact me to discuss any questions you have regarding division of property, divorce and separation, child support, spousal support, custody and access or guardianship and parenting, please email me using this link, or call me on 403-538-2105.

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