Applying for a passport for your child after a separation or divorce can be difficult. With the Canadian Government generally requiring both parents to sign the application form, disputes can result.

This article looks at the passport application process and what happens when separated parents disagree on whether their child should receive a passport. We also look at a recent decision of the Ontario Superior Court of Justice in which a mother sought leave from the court to obtain a passport for her child to facilitate a trip to India.

Who can apply for the passport and what documents are needed?

If there is a court order or separation agreement that deals with decision-making responsibilities, only the parent with custody can apply for the child’s passport. Where decision-making responsibility is shared (joint custody arrangement), either parent may apply.

Both parents need to sign the passport application form. In addition to providing proof of Canadian citizenship and proof of parentage, such as the child’s birth certificate, all documents relating to custody of, or access to, the child must be submitted with the application. This includes any separation agreements, court orders and divorce judgments.

The Canadian Government’s web page provides further information about passport applications.

If you’re worried that someone might apply for a passport for your child without your consent, you can apply to add your child’s name to the passport system lookout list.

What can happen when the parents disagree on whether their child should receive a passport?

Separation agreements may contain specific provisions relating to passport applications and/or travel arrangements.

If the parents cannot agree as to whether their child should receive a passport, a court may be tasked with determining the issue.

Under the relevant legislation, when a court makes a parenting order regarding decision-making responsibility or parenting time with respect to the child, the court takes into account the best interests of the child. In determining the child’s best interests, the court shall consider all factors related to the circumstances of the child and shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

Mother sought passport for child to facilitate trip to India

In Waraich v Waraich, the applicant mother sought leave to obtain a Canadian passport for her child and to travel with the child to India for approximately six to eight weeks.

The mother was sponsored to come to Canada by the father. The two were married in 2016 and separated about six months after the child was born in 2020.

The father did not consent to the mother’s application for a passport for the child and opposed the court application.

Father expressed concern that the child may not be returned to Canada

The father explained that he has been exercising parenting time each Saturday and wanted to increase his parenting time. He also expressed a concern that the mother wanted to remove the child from Canada and not return, noting that she had no employment, assets or immediate family in Canada.

However, the mother said she intended to return to Canada and explained that she had applied for Canadian citizenship. She also proposed that, although India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), for the purposes of her application she would agree that it was applicable in this case, such that if the child was not returned, the father could proceed with a Hague Convention proceeding in order to seek the return of the child to Canada.

For information about this process, see the Canadian Government’s guide to international child abductions.

Court considered the fact that India is not a signatory to the Hague Convention

Justice Daley said that fundamental to the analysis of the mother’s motion relating to the passport and her request for permission to travel with the child was the best interests of the child and whether they would be served by granting the application. His Honour explained that the real issue was not necessarily the extent of the benefit of the travel to the child, but the nature and extent of the risk that the child may not be returned.

His Honour thought that the fact India is not a signatory to the Hague Convention was a significant consideration:

In the event the child was not returned as promised by the applicant, her proposal that she would be deemed to be bound by the terms of the Hague Convention is of absolutely no value to this court nor to the respondent [father]. These parties cannot simply by an agreement impose the Hague Convention on an Indian court or government authorities. Such an agreement would be completely unenforceable.

Court refused mother’s application for leave to obtain passport for child

Justice Daley found that the mother had a very tenuous connection with Canada, which weighed against her application. His Honour also noted that the separation of the child from the father for six to eight weeks was another important factor. The mother’s failure to put forward any plan for the proposed trip to India was another factor. There was no evidence as to the exact time frame of the trip, where she would reside and what family members she would see, and therefore nothing before the court upon which the safety and welfare of the child could be assessed.

As a result, Justice Daley refused the mother’s application for leave to obtain a passport and travel to India with the child.

Contact NULaw in Toronto to Protect Your Custody and Decision-Making Rights

If you are experiencing child access and parenting time disputes, contact the experienced family lawyers at NULaw in Toronto. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters, including custody and access. Contact us online or at 416-481-5604 to book a consultation.

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