Seeking an order disposing of the other party’s consent to travel? A “Hague Country” is not necessarily enough to dispel concerns

• by Lesley Singer

Originally published in the OFLM 2024-08 edition

Overview

This article explores judicial considerations when making Orders permitting a parent to travel without the other parent’s consent, with an eye to Justice Ramsay’s decision in Badar v. Danish, (2024 ONSC 3942) and the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No, 35 (“the Hague Convention”).

Introduction - overview of basic principles

While not a legal requirement, the federal government strongly recommends that a parent seeking to travel abroad with their child should obtain a travel consent letter from the other parent to avoid trouble at the airport. However, in situations when the non-travelling parent is unreasonably withholding their consent, a parent may be inclined to obtain an Order authorizing the travel.

Determination of whether a child can travel outside of Canada is ancillary to decision-making responsibility, and thus falls within the court’s jurisdiction, as per s.16.1 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.).

As with any child-focused order, courts adhere to the ‘best interests’ test

When court makes any decision pertaining to the child, the test is what is in the child’s best interests, pursuant to s. 24(2) of the Children’s Law Reform Act and s. 16(2) of the Divorce Act.Again, per the statutory directives, the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being (the language in both statutes is the same).

Courts must additionally balance the benefits of the travel against any plausible risks. This weighing process is case specific, and, in some cases, the facts will require the court to refuse the travel request, whereas in others "the facts will lead to the opposite conclusion." (Purushothaman v. Radhakrishnan, 2014 ONCJ 300 at para. 18; Saini v. Tuli, 2021 ONSC 3413). While no one factor alone is determinative, a consistent set of factors and/or themes can be derived from the case law, to be discussed below.

Special, once-in-a-lifetime occasions are consistent with the child’s best interests

The court in Barritt v. Barritt (2016 ONSC 4746) held that special occasions, like a family wedding (especially the wedding of a parent), will most likely be in the child's best interests. It should be noted, however, that in the facts of Barritt, there was no evidence that the party seeking to travel (the father) would not act responsibly ensuring that the child was properly and safely cared for both during the trip.

Opportunities for the child to foster a connection with his or her heritage

In Karol v. Karol, (2003 CanLII 2323) Justice Magda found that it was in the child's best interest to travel to Israel because the trip would be an opportunity for the child to foster a connection with his heritage.

Similarly, in Yacoub v. Yacoub, 2010 ONSC 4259, Justice McGee held that a trip to Egypt to visit family was a "remarkable, one-time opportunity for the girls to visit extended family, explore their heritage and enjoy the benefits of world travel” (at para. 21).

It is important to note, however, that the children in Yacoub were older and thus better able to appreciate the benefits of travelling, a factor the courts have taken into consideration. For example, in Palterman v. Palterman, (2015 ONSC 1823) the court refused to make an order to withdraw the mother’s consent, in large part because of the child's young age and the unlikelihood that the child would "have any appreciation of [certain forecasted cultural and outdoor experiences], nor is he likely to retain any meaningful memory of [the proposed] visit" (at para. 14).

Additionally, while the court is to promote family and cultural enrichment, the child’s physical and emotional security remain of utmost priority (Mahadevan v. Shankar, 2010 ONSC 5608).

Consistent with the best interests test and the court’s task of balancing the pros and cons of permitting the travel, the case law illustrates that courts place significant weight on identifiable risks in the country the parent wants to visit with the child.

Safety concerns - risk of abduction and the Hague Convention

There is a plethora of case law concerning the risk of abduction in the context of whether to make an Order to dispense one parent’s consent for the child to travel. The starting point in discussions of international child abduction is the Hague Convention.

Albeit a case concerning the determination of a child’s habitual residence, Justice Fairburn in Zafar v. Azeem, 2024 ONCA 15 captures the significance of a state being recognized as a signatory to the Hague Convention.Being a signatory sends a message to the world that the interests of children are of paramount concern. As put by Justice Fairburn, “[w]hen dealing with signatories to the Hague Convention, we take comfort from the fact that they, like Canada, are committed to making decisions based upon the best interests of children” (at para. 40).

With this in mind, courts are alert to the risks of bringing a child to a country that is not a not a signatory to the Hague Convention. As Justice Gray explained in Venkatesh v. Venkatesh, (2010 ONSC 1177) once in a non-Hague country, there is very little incentive to return the children to Ontario. Further, the legal recourse in the non-Hague country (e.g., availability of proceedings, their cost, length, and predictability of results) may be difficult to ascertain (at para. 21).

In Mahadevan v. Shankar, the father brought an urgent motion for an Order to take his four-year-old son to India for a month to visit his family and celebrate the major Hindu holiday, Diwali. The mother opposed the trip out of fear that the child may not be returned. There were a plausible set of concerns in allowing the travel, including the father’s animosity towards the mother, the mother’s allegations that the father had threatened to remove the child from Canada to raise him in India, and that the father had no financial or property ties to Canada.Significantly, India is not a signatory to the Hague Convention.

As Justice Pazaratz noted, “there are overwhelming reasons to be concerned that if the Respondent retained [the child] in India, there is very little the Applicant could do about it” (at para. 39). After weighing the pros and cons, Justice Pazaratz noted that the risks in permitting the travel were far too great and dismissed the father’s motion.

Even if not a signatory to the Hague Convention, there must be evidence showing a risk of abduction

It must be noted that even if a country is not a signatory to the Hague Convention, in the absence of evidence indicating the possibility of the child being abducted, an Order preventing the travel would not be justified (Hamid v. Mahmood, 2012 ONCJ 474).

Purushothaman v. Radhakrishnan involved a mother seeking to travel to India without the consent of the father. In contrast to Mahadevan, Justice Spence held in favour of the mother, as the court found that she was likely to return with the child to Canada. In the facts of the case, the mother had lived in Canada for eight years, had been working the same full-time position for five years, owned a condo in Canada, and had recently applied for Canadian citizenship. These factors and the mother's behaviour did not "suggest [to the court] that she would suddenly, and for no apparent benefit, resort to abducting the child" (at para. 19).

Similarly in Cook v. Cook, 2019 ONSC 1859, the mother sought an Order permitting travel to Thailand – not a Hague country, and under military rule.The father indicated that the child had told him that the mother was planning to build a home in Thailand.The father claimed the child might get involved in the sex trade industry and that the mother had properties in Thailand.

The parties had met in Thailand, and the child was 10 years old, born in Thailand and had spent the first 5 years of her life there.There was a temporary consent order for joint custody as part of a motion to change a final Order.

Crucially, the final Order contained a provision allowing for travel to Thailand for up to four weeks per year. Going back to first principles, Justice Jain reasoned that all the father’s stated concerns were known to him at the time of the Final Order, and that the Final Order “did contemplate that Sophie would return to visit Thailand with her mother sometimes” (at para. 14).

Justice Jain ultimately decided that Sophie could not travel to Thailand with her mother because the planned vacation was during the school year, she was not doing well academically, and would miss 3 weeks of school (Her Honour noted the Final Order did not state that Sophie could travel to Thailand during the school year).However, a reading of the case leaves the impression that Justice Jain would have permitted the travel to Thailand – not a signatory to the Hague Convention – had the trip been during the summer or Christmas Break.

A signatory, but not recognized by Canada as a party – not a good sign

A country being a signatory to the Hague Convention is only part of the picture, and that alone does not eliminate the court’s concerns for the risk of abduction in travel consent cases.Justice Ramsay’s recent decision, Badar v. Danish, (2024 ONSC 3942) touches on this.

In Badar, the mother was seeking an order to dispense of the father’s consent so that she could travel with her seven-year-old son to Pakistan, a signatory to the Hague Convention to attend her sister’s wedding. Despite Pakistan being a signatory, the court still had concerns that the Respondent mother could successfully abduct the child.

As explained by Justice Ramsay, Canada does not recognize Pakistan as a true party to the Hague Convention, referring to the Court of Appeal’s succinct description in Zafar: “While Pakistan acceded to the Convention on March 1, 2017, Canada has not acknowledged its accession... It means that the terms of the Convention do not apply” (at para. 41, emphasis added).

The parenting arrangements in Badar were unsettled and there was great animus between the parties, including an allegation by the father that the mother’s family had kidnapped him and held him at gunpoint.

Other plausible safety risks - beyond the Hague Convention

Her Honour also took judicial notice of the federal government’s Travel Advisory for Pakistan, which warned against travelling to specific areas within Pakistan, though none of them were the regions where the mother was intending to travel. They were, however, listed on the General Advisory, which advised to exercise a ‘high degree of caution’ and notified of security situations and elections. The travel advisory indicated that the security risks in Pakistan were evolving and remained unpredictable (Badar, paras. 46-47).

Her Honour held that the plausible risks outweighed the benefits of the proposed travel, stating (at para 56):

…the risks to the child’s safety and security, coupled with the lack of assurances that if the child were not returned to Canada it would be difficult to return him, and in the context of a very contentious proceeding and parenting battle that has not yet been finalized, outweigh the possible benefit to a seven-year-old child… who would be essentially tagging along with his mother to her sister’s wedding.

Therefore, not being a recognized party of the Hague Convention, together with contentious, unsettled parenting arrangements and government travel advisories warning of the serious risks in travelling to the country are strong factors against making an Order to permit the travel.

Conclusion

When determining whether authorizing travel abroad is in the child’s best interests, courts look at a multitude of case-specific considerations. Whether the country has signed onto the Hague Convention is an important, but not determinative, consideration. Ultimately, there is a balancing act where the risk must surely weigh on the court’s conscience in making a potentially life-altering decision to authorize the travel. If the objection is well-founded, with evidence of a parent’s lack of a substantial connection to Canada, or where there is a high level of contention amongst the parties, the likelihood of a veto is increased.