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When going through the process of separation and divorce when there are children of the marriage, there are many decisions that need to be made with respect to such children, including determination of who will have parenting time and decision-making responsibility, when, and under what terms parental access will be granted. In some cases, the question of international travel may arise if one parent wishes to take the children post-separation outside of Canada. This issue tends to arise when one parent obtains employment, post-separation, in another country or where one parent has family or other established community in another country.
Couple Has Children in Canada
The issue of international travel was prevalent in the case of Kanavor v Kanavor. The husband and wife had married in November 2017 and separated on August 3, 2022. Both the husband and wife emigrated to Canada from Slovakia – the wife emigrated in 1998 with her family, and the husband emigrated in 2017. The parties had met online before the husband arrived in Canada in 2017. The parties had two children together, a daughter born in March of 2020 and a son born in May of 2021. Both children were born in Canada.
From the Fall of 2017 to the Spring of 2019, the parties resided in Oakville, Ontario, during which time the mother worked as a French teacher and the father worked outside the home. After she obtained her real estate agent licence in 2019, the mother began working as a realtor, which she continued to do from 2019 through 2022. In the summer of 2020, the parties agreed that, since the mother was the higher-income earner, she would continue to work in her real estate practice while the husband would stay home with their infant daughter and, later, their toddler daughter and infant son.
Family Moves to America Before Relocating to Slovakia
In August of 2021, the entire family relocated from Stevensville, Ontario, to Macon County, Illinois, where the mother worked as a French teacher, and the father continued to stay at home with the couple’s children. In October 2021, the family moved to Dallas, Texas, and then in January 2022, they relocated yet again, this time to West Palm Beach, Florida.
The move to Florida was intended to foster the mother’s new employment position with a company called Mandala World. However, it was discovered upon arrival in Florida that the mother did not hold the appropriate work visa to allow her to engage in employment in the United States. As a result, the family left Florida and briefly returned to Ontario, Canada, in April of 2022 before they decided to relocate the entire family to Slovakia until the mother’s visa situation could be resolved.
Disagreement in Slovakia Results in Separation
Upon arrival in Slovakia, the entire family stayed with the paternal grandparents in Bratislava, Slovakia, before they went to stay with maternal family members in Humenné, Slovakia. While staying in Humenné, the parties engaged in a disagreement that resulted in the mother calling the police in regard to the husband’s behaviour.
As a result of their argument, the parties separated, and the mother retained legal counsel in Slovakia to assist her in obtaining a restraining order against the father. In accordance with that lawyer’s advice, the mother returned to Canada with the children. The lawyer had advised the mother that Canada offers better legal protections to victims of family violence than does Slovakia, though her lawyer in Slovakia was instructed by the mother to continue to pursue charges against the father in respect of their earlier argument, which she alleged had resulted in violence on the father’s part.
The father returned to Canada shortly after the wife and children.
Mother Seeks to Permanently Relocate With Children to Malta
Since their return to Canada, the mother and children had all resided together full-time while the mother worked remotely for Mandala Wood. The mother alleged that the father had been emotionally, financially and physically abusive toward her throughout their marriage and separation, in respect of which she filed an urgent motion in August of 2022 in which she sought a restraining order against the father. That motion was granted, and a temporary restraining order was issued. In addition, the mother was temporarily ordered to have full custody of and full decision-making responsibility for the children. The parties were ordered to come to satisfactory terms concerning the father’s visitation rights and were able to do so by the summer of 2023. Further to their agreement, the father began engaging in supervised visits with the children in August of 2023. At the time of their first visit, an entire calendar year had elapsed since the father had last seen his children.
In that same month, the mother was offered the position of Executive Assistant Director of Mandala World’s Global Academy, located in Malta. The court described the opportunity offered to the mother as providing “a unique and rare career opportunity to help establish the company’s Kindergarten to Grade 12 educational curriculum in Malta”.
Court Recognizes Rare Employment Opportunity for Mother
Importantly, the court noted that such an opportunity, as rare and special as it was, was unlikely to ever be afforded to the mother again. Acceptance of the job would require that the mother relocates to Malta for the duration of her employment in this special role, though it would also provide her, and by extension her family, a measure of financial certainty, as the salary for the role was nearly double what the mother had earned working for Mandala World as an independent contractor in the year prior to receiving this new offer.
The mother wished to accept the offer of employment to work in Malta. She petitioned the court for permission to take the children to Malta. Furthering her application, the mother offered evidence that the father had not paid any child support since the parties’ separation in August of 2022 and that he had reported income of less than $11,000 for 2022. The husband appeared not to have been gainfully employed until just a few weeks before the hearing of this motion, in October of 2023, in addition to which he had filed paperwork with the court indicating that he was seeking payment of spousal support from his ex-wife.
Legal Principles Governing Removal of Children from the Country Post-Separation
Removal of children from Canada after a separation or divorce is not undertaken in a vacuum. Helpfully, there are legislation guidelines that dictate the circumstances in which it may be permissible for children to be taken to a country other than Canada, as well as the steps to be taken in furtherance of any intention to do so. Specifically, section 16 of Canada’s Divorce Act dictates that, in making any decision in family litigation with respect to children, the best interests of the children must be the primary consideration. In evaluating what is in the best interests of the children, the court will specifically consider, amongst other things, the ages and stages of development of the children; each spouse’s willingness and ability to foster the other spouses relationship with the children; the nature of each child’s relationship with each parent, including that parent’s extended family; the history of the care of the child; the willingness and ability of each parent to comply with any order of the court; and the impact of any claims of family violence. In specific relation to the consideration of family violence, the Divorce Act directs the court to consider any physical, emotional or psychological harm caused to a child, whether a pattern of such behaviour has been established, whether the safety of any family member has been compromised, and any steps taken by the perpetrator to address their behaviour and prevent such instances from occurring in the future.
The Divorce Act also includes specific provisions, sections 16.9 through 16.95, that govern the relocation of a child to a country other than Canada by one parent of a divorced or separated couple. To that end, the courts have interpreted that these provisions effectively boil down to one question: whether, having regard to the child’s physical, emotional and psychological safety, security and well-being, relocation is in the best interests of the child. The criteria the court must consider in assessing the best interests of the child in respect of relocation are listed in section 16.92 and include the reasons for the relocation, the anticipated impact of relocation of the child, the amount of time the child spends with each parent pre-relocation; the reasonableness of the proposed move; whether each parent has complied with any existing orders governing parenting time and custody of the children; and whether any order with respect to the geographic location of the children has previously been made.
Court Finds Both Parents Equally Cared for Children During Marriage
The court noted at the outset of its decision that, when one parent seeks to relocate children of a separation to a country other than Canada, the onus is on the parent who seeks leave to move. In other words, whichever parent wishes to relocate will bear the burden of proving to the court that it is in the best interests of the child(ren) to relocate to a country other than Canada. In this case, the court was satisfied that the mother had met that burden, in that the court found her to be a good mother who had been offered a unique job opportunity in another country. In that regard, the court was satisfied that the mother had not sought out a job opportunity in another nation in an effort to alienate the children from their father. The court was further satisfied that the father had not been paying interim child support as ordered by the court, and also that the father had not made significant, or any, efforts to seek gainful employment until immediately before the hearing of this matter was scheduled to take place.
The court concluded that the mother and father had equally cared for their children throughout the marriage since, although the father had ostensibly been a “stay-at-home parent” for several years. Further, the wife had discovered post-separation that the husband had regularly left their children in the care of a family friend, without the mother’s knowledge or consent, during times that the husband was ostensible “home with the kids.” The extent to which the couple’s children were left in the care of this friend and the reasons for such were unknown, as the father had been unwilling or unable to provide the court with a satisfactory explanation for his behaviour.
Court Finds Grants Motion for Relocation
Consideration of the criteria related to the best interests of the children also demonstrated that the motion for relocation should be granted, since the history of the children’s care, the willingness and capability of each spouse to honour the court’s orders and to foster a relationship with the other parent, the reasons for the relocation, and the ability and willingness of each parent to provide the necessary care and support to the children, all weighed in favour of the wife.
Accordingly, the court granted the mother temporary permission to relocate to Malta with the children, in addition to which she was granted temporary sole custody of and full decision-making responsibility with respect to the children. Due to the serious allegations of family violence, which had not previously been tested in a court setting, the court concluded that it could not make a permanent order regarding relocation, as the resolution of such serious allegations required a full court trial. Resolution of the parties’ dispute regarding family violence allegations would have a direct bearing on the court’s decision with respect to a permanent order regarding the children’s country of residence.
Contact the Family Lawyers at Johnson Miller for Advice on Travel and Relocation With Children After Separation
If you are going through a separation or divorce and either you or your former spouse is seeking to travel internationally with your children, whether on a temporary or permanent basis, it is important to ensure that such travel is only undertaken in accordance with the applicable laws. To learn more about your options regarding travel with children, contact the skilled family lawyers at Johnson Miller Family Lawyers. We will help guide you through the process and provide you with information to ensure that you can make informed decisions while respecting your rights. Contact us online or call us at 519.973.1500 to schedule a confidential consultation.
