No Consent to Travel: How Ontario Courts Decide Whether a Child Can Leave Canada

International travel can become a source of conflict after separation, particularly when one parent wants to take a child abroad and the other objects. A trip may offer valuable time with family or an opportunity to experience the child’s cultural heritage. It may also raise concerns about safety, compliance with parenting orders, or whether the child will return to Canada.

When Ontario courts are asked to resolve these disputes, the central question is whether the proposed travel is in the child’s best interests. The Court considers the circumstances of the particular child and trip, including the destination, the purpose of travel, family relationships, and any risk that the child will not be returned.

In Khalifa v. Madian, the Ontario Superior Court of Justice considered these issues when a father sought permission to take his young daughter to Egypt to visit her seriously ill grandmother.

A Father Sought Permission to Take His Daughter to Egypt

The separated parents had a daughter who was five and a half years old. A court order prohibited either parent from taking her outside Canada without the other parent’s written consent or a further court order.

The father wanted his daughter to accompany him to Egypt because his mother’s health had deteriorated and her condition was potentially life-threatening. He also wanted the child to meet family members and experience her cultural heritage. The mother opposed the trip and sought restrictions on travel to Egypt or other countries outside the Hague Convention framework without her consent or court authorization.

The Court assessed the request under the Children’s Law Reform Act (CLRA). Section 24(2) requires primary consideration of the child’s physical, emotional, and psychological safety, security, and well-being. The Court examined the proposed trip’s benefits alongside concerns about the destination, the ongoing parenting litigation, and the father’s purchase of an airline ticket for the child.

Why the Destination’s Hague Convention Status Matters

Egypt is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention provides a process for seeking the return of children who have been wrongfully removed to, or retained in, another participating country. Its absence can complicate efforts to secure a child’s return.

In Geliedan v. Rawdah, the Ontario Court of Appeal discussed the reassurance provided by a country’s participation in the Convention, including its acceptance of reciprocal obligations concerning international child abduction. However, a destination’s non-participation does not automatically prevent travel. In Badar v. Danish, the Court recognized that this is a relevant risk factor, but it is not decisive on its own without evidence suggesting that the child might not be returned to Canada.

Therefore, the assessment extends beyond the destination’s treaty status. The Court must consider the evidence about the proposed travel and the possibility that the child could remain abroad.

Travel Advisories Are Relevant, Even When a Parent Knows the Country

The Court also considered the Government of Canada’s travel advisory for Egypt at the time. It recommended exercising a high degree of caution because of regional tensions and an uncertain security situation.

The father had been born in Egypt and had lived there for much of his life. The Court acknowledged that his familiarity with the country could help him navigate local conditions. It also noted that the family had previously travelled there despite similar advisories.

Nevertheless, familiarity and good intentions did not eliminate safety concerns. In Hamid v. Mahmood, the Court observed that people can encounter dangerous situations without knowingly placing themselves at risk. In Khalifa, the advisory was one factor in the broader best-interests assessment, rather than a reason that independently determined the outcome.

The Child’s Relationship With the Grandmother Required Closer Examination

The father’s wish for his daughter to spend time with her ill grandmother was an important part of the request. Section 24(3) of the CLRA includes consideration of the nature and strength of a child’s relationships with grandparents and other significant people.

The child had previously travelled to Egypt with her parents, although the evidence did not establish how much time she had spent with her paternal grandparents during those visits. The Court noted that her total possible in-person contact amounted to no more than 54 days. There had also been telephone and video contact, but its frequency and duration were unclear.

The Court referred to Ndju v. Fort, which considered a proposed trip to Haiti for a very young child to visit an ill grandmother. In Khalifa, the Court questioned whether the proposed visit would benefit this particular child, given her age, the evidence about the relationship, and the potentially distressing circumstances. Its concerns were tied to the facts before it, rather than a general rule against children visiting seriously ill relatives.

Cultural and Family Benefits Must Be Supported by the Travel Plans

The father also relied on the opportunity for his daughter to meet extended family and connect with her heritage. However, he did not identify other relatives he intended her to meet, and there were no sightseeing plans because the trip would centre on his mother’s condition.

The Court was concerned that introductions to unfamiliar relatives would occur in an atmosphere of sadness and possible grief. It was not persuaded that the proposed trip would provide the cultural and family benefits advanced in support of the request.

In Mahadevan v. Shankar, the Court acknowledged the potential value of cultural exposure while emphasizing the need to assess the risk of a child not being returned from a non-Hague country. A trip’s potential benefits must be considered alongside its risks, with attention to what the actual arrangements would mean for the child.

Existing Orders and Ongoing Parenting Disputes Also Matter

The Court also examined the father’s purchase of an airline ticket for the child. The mother said she had not agreed to the purchase, and an earlier order prohibited either parent from applying for travel documents for the child.

The Court interpreted that restriction as intended to prevent steps toward removing the child from Canada. It found that purchasing the ticket ran contrary to the order’s purpose. Although the purchase might have been an innocent mistake, the Court was unwilling to dismiss its significance in the circumstances.

The ongoing parenting litigation added context to the concern. As discussed in Badar, unresolved parenting issues can be relevant when assessing the risk that a child taken to a non-Hague country will not be returned. In Khalifa, the Court considered the ticket purchase together with the other evidence, rather than treating it as an isolated issue.

The Court Refused Permission for the Trip

After weighing the circumstances, the Court dismissed the father’s motion. It concluded that the proposed travel served the father’s interests rather than the child’s best interests, and that the concerns associated with the trip could be avoided by having the child remain in Canada.

The decision illustrates the fact-specific nature of international travel disputes. A parent’s understandable wish to visit an ill relative does not resolve whether a child should accompany them. The Court must assess the child’s relationships, the proposed arrangements, safety concerns, the risk of non-return, and compliance with existing orders.

Johnson Miller Family Lawyers: Advising on Windsor-Essex Child Travel and Parenting Disputes

Disagreements about international travel can raise urgent questions about parenting orders, consent, passports, and a child’s return to Canada. The team at Johnson Miller Family Lawyers assists parents across Ontario with child travel disputes, parenting time, decision-making responsibility, and requests for court permission to travel. Whether a parent seeks authorization for a proposed trip or has concerns about a child travelling abroad, contact us online or call (519) 973-1500 to discuss the applicable parenting arrangements and available legal options.