Custody is the right and obligation that one party has to raise a child, to make decisions concerning that child and to take responsibility for raising the child. In other words, unless modified by a court order or agreement, the custodial parent has the right to make decisions concerning the child's education, health, social activities and where the child will live. The custodial parent also has the obligation to ensure that the child is properly cared for.

Children inevitably comprise the most difficult aspect of a family law case. As you read the following, bear in mind that less than four per cent of custody disputes are finalized through court proceedings and of those, only five per cent ever see a full-scale trial. Most custodial arrangements are made between the parents themselves or with the assistance of professionals. If parents are unable to agree on the child's best interests, either on their own or with the assistance of lawyers or mediators, then the courts will do it for them.

The first thing a parent has to understand is that the court is not concerned with emotional matters, with how much a parent misses his/her children. What the law cares about are the rights and the best interests of the child. If those rights and interests correspond with a parent's wishes and feelings, then this is a fortunate by-product of the court's decision. The moment you ask a judge to decide issues of how your children should be raised your desires become secondary. This is why judges are so fond of telling parties they should work out child-rearing arrangements between the family, because if they don't the judge will do it for them and (as judges invariably add) "neither of you is going to like my decision."

What follows is a description of how the law operates with respect to custody and access: included are some suggestions for dealing with the issues that arise in what lawyers universally refer to as "custody battles."

TOP

DO MOTHERS TRUMP FATHERS?
Statistics show that of the cases that go to court, the mother ends up with custody 81 per cent of the time. This is not necessarily because of gender bias, although it would be naive to deny that some degree of bias in favour of the mother exists with some judges.

More often the woman is awarded custody because the mother has had the closer relationship with the children growing up. She will have nursed them and often remained at home with them. In some cases she has been less focused on career or the need to earn money to support the family.

A child's age can often be a determining factor: if a couple has two children, one of whom is six months old, it is generally agreed that the baby should stay with its mother and that the two siblings should not be separated, so both remain with the mother.

In many cases it is the father who leaves the home because it sometimes makes more financial sense. This, however, creates a status quo whereby the mother stays with the children. This is an extremely important determinant in custody battles.

TOP

CUSTODY – THE STATUS QUO
Statistics show that of the cases that go to court, the mother ends up with custody 81 per cent of the time. This is not necessarily because of gender bias, although it would be naive to deny that some degree of bias in favour of the mother exists with some judges.

More often the woman is awarded custody because the mother has had the closer relationship with the children growing up. She will have nursed them and often remained at home with them. In some cases she has been less focused on career or the need to earn money to support the family.

A child's age can often be a determining factor: if a couple has two children, one of whom is six months old, it is generally agreed that the baby should stay with its mother and that the two siblings should not be separated, so both remain with the mother.

In many cases it is the father who leaves the home because it sometimes makes more financial sense. This, however, creates a status quo whereby the mother stays with the children. This is an extremely important determinant in custody battles.

TOP

CUSTODY PLAN
Theoretically, regardless of the status quo, a court will investigate and consider several factors in determining the best interests of the children. These factors include:
o The stability of the two competing households.
o The willingness of each parent to ensure the development of a relationship between the children and the other parent.
o The ability (that is availability, interest and degree of responsibility) of each parent to care for the children.
o The children's wishes (if appropriate) and relations between the children and step-siblings, among other things.

This consideration will involve an assessment of each parent's "custody plan." A custody plan is an outline of the arrangements each parent proposes for raising the children. It should include the following:

o A description of the neighbourhood and dwelling where the children will live, not a plan to acquire a dwelling in the future, but the current dwelling.
o A description of the children's living quarters.
o Information about the proximity of the proposed household to schools, transportation and medical facilities.
o Details about proposed schools and churches.
o A plan for the involvement of the parent in the children's day-to-day activities and special activities.
o Suggestions for how to deal with any special needs of the children.
o Particular items concerning how the proposed custodial parent will encourage the children to develop and maintain a close relationship with the other parent, including proposed access and sharing of holidays.
o Plans for after-school care of the children.
o The maintenance of the child's relationship with other siblings or step-siblings.
o The involvement of new partners and the extended family (usually grandparents) of the ex-spouse in the children's lives.

This list is not exhaustive, but does illustrate the kinds of items the courts will examine. Note that the list focuses on the well-being of the children and not the parents. The custody plan is very important and you should pay a great deal of attention to your lawyer's suggestions and guidance in developing and presenting a reasonable and workable custody plan.

When making presentations to lawyers at seminars, judges will stress the importance of having a reasonable position on custody and access. Judges have said time and time again that they respond best to the party who is the least emotional and most reasoned. Unfortunately, either the message has not sunk in with many lawyers or they are unable or unwilling to control their clients who insist on presenting plans that are emotional, laced with personal criticism of the other party and often unrealistic.

It is sometimes very difficult for clients to accept the notion of "reasonableness" and it is this area, more than any other, that creates stress between lawyer and client. The client will often think that the lawyer who emphasizes reasonableness is being "soft" or too agreeable. What the client may fail to realize is that the custody or access decision is going to be made by a judge - a disinterested party with no emotional ties to the outcome. The person best able to recommend the approach to take in such a situation is a person who is also disinterested and unemotional, namely, the lawyer. An experienced lawyer has been involved in dozens of custody cases and knows what judges look for. Sadly, there are many lawyers who will play into their client's emotions and put forward unreasonable plans or positions that are doomed to fail.

Here is a simple example involving Christmas. One parent, usually the custodial parent may insist that the children be with him or her every Christmas Eve and Christmas morning. The custodial parent will say that this in the best interests of the children because the matrimonial home (where the custodial parent lives with the children) is the home where the children have always celebrated Christmas. This characterization fools no one. Clearly, the custodial parent wants to keep the joy of sharing Christmas with the children to him/herself. It is a transparently selfish proposal.

Any lawyer will tell you that almost universally, judges feel it is in the best interests of the children - especially younger children - to experience Christmas with each parent. The reasoning is that the special nature of the holiday helps to build the bond between parent and child, an important factor in a child's development. A lawyer (who is doing his or her job) will also tell you that unless there is an exceptional circumstance, such as the rare visit of a grandparent or a once in a lifetime trip overseas, a judge will nearly always order the children to spend one Christmas with one parent and the next Christmas with the other parent. Thus, a judge will rule that the parent who had the children last Christmas should not have them for the upcoming Christmas. In spite of this, the courts often hear parents battling over the children's time at Christmas even though the chances are remote that the parent who had the children last Christmas will have them again this Christmas.

The notion of having the children spend every Christmas is unreasonable. It makes the parent who wants every Christmas appear as though he or she is unable to put the child's needs ahead of his/her own. This is a dangerous position to place before a court in a custody battle. Also, if you appear unreasonable in one matter, it is easier for your spouse to characterize your position on another matter as unreasonable. The lesson here is that a sincere focus on the children's best interests, recognition of the importance of the other parent in their lives and a sense of fairness, not only benefits your children but also serves to strengthen your case before the court.

TOP

JOINT CUSTODY
Joint custody is not defined in any statute. It has nothing to do with where the child resides. It does not mean that the child lives one week with one parent and the next week with another parent. Joint custody refers to the decision-making process and the degree of rights each parent has to be involved in those decisions. Think of joint custody as the situation that existed before separation where parents would discuss the needs of the children and try to reach a consensus on a particular course of action.

In the typical joint custody situation the child resides "primarily" with one parent or the other. Primary residence basically refers to the address of the child. For example, when a child is registered in school, the school generally expects the child to have a single residence; that would be the primary residence.

Joint custody is like a soup with various ingredients. Some joint custody arrangements do not specify the precise mechanism governing how joint custody works. In others, the joint custodial relationship is spelled out in some detail. Some joint custody arrangements provide for consultation between the parents, with one parent having the final say in the event of a dispute. In other cases, parents have to agree on decisions in certain areas (such as religious upbringing or non-emergency medical treatment) and if they are unable to agree a decision-making process is described in detail to resolve any differences of opinion.

One important consequence of joint custody is that it creates a presumption that the child should remain in close physical proximity to both parents. This means that it is more difficult for one parent to convince a court that if he or she decides to move out of the area, the children should move as well. This is an important consideration for each parent when they are deciding whether or not to agree to or seek joint custody.


Courts are often reluctant to order joint custody in the face of opposition from one of the parents. Courts reason that if the parents cannot agree on the concept of joint custody, it is unlikely they possess the requisite level of cooperation to make decisions together. Although a few judges will occasionally order joint custody, most joint custody arrangements are arrived at through the agreement of the parties.

TOP

SHARED CUSTODY
Shared custody is an arrangement where the children live with each parent for approximately equal periods of time. Usually, a shared custody arrangement only exists when there is joint custody regarding decision-making. For this reason shared custody is seldom ordered by courts in the face of opposition from one party or the other. Generally, for shared custody to work, the parties should live reasonably close to each other in order to ensure that the children will remain close to their school and their neighbourhood friends. The actual schedule can be alternate weeks or the sharing of the days during the week.

Shared custody can have a significant impact on the payment of child support.

TOP

ACCESS
Access is the time that the non-custodial parent spends with the child. The access parent also enjoys the right to receive information about the children from certain third parties such as schools and doctors. Typically, access includes alternate weekends from Friday evening to Sunday evening or Monday morning, as well as a mid-week visit (sometimes overnight). Holiday time is generally split evenly although summer access may range from between two weeks to four weeks, depending in large part on the holiday schedule of the access parent.

The law regards access as being an extremely important component of the normal development of a child who has had his or her family fractured. It is, therefore, only in the most extreme cases that access will be denied by a court. Those situations include severe substance abuse, a history of violence (a single incident will rarely suffice) or proven threats from the non-custodial parent to abduct the child.

Access can be a very contentious issue in a family law case. There can be disagreements over pick-up and drop-off times, the location of the pick-up and drop-off, who is present at the pick-up and drop-off, limitations on the children's activities with the access parent, telephone contact between the access parent and the children, special event access such as Christmas or Halloween, make-up access in the event that an access visit is cancelled by one parent or the other, the children's clothing or condition upon being picked up or returned, or the children's sleeping arrangements at the access parent's home.

The underlying cause of this conflict is that access is the one time when the two spouses must come into direct contact with each other. In some cases, relations between the two spouses are so bad that they are ordered to communicate in writing by maintaining a "communication book," which records information or instructions from one parent to another. For example, if a child has an ear infection, the custodial parent will write down instructions for administering the medication in the communication book for the access parent to read.

The most common complaints of custodial parents are that the access parent is late to pick up or return the children, that the children are in a bad mood or "hyper" when they return from access, that the access parent doesn't feed the children properly, that the access parent allows them to stay up too late or that the access parent misses access.

The most common complaint of access parents is that the custodial parent does not have the children ready to be picked up on time, that the custodial parent does not send the children with enough clothing or season-appropriate clothing or toys, that the access parent unilaterally changes access, or that the custodial parent schedules extra-curricular activities that interfere with the access parent's time with the children.

Usually these complaints can be worked out between the lawyers, but sometimes the problems are so persistent that it is necessary for a court to become involved. Judges dislike dealing with these kinds of access disputes and if a judge decides one side or the other is to blame, that party can expect to be ordered to pay significant costs.

The most serious complaints have to do with missed access. Access is considered at law to be the right of the child. It is not the right of the access parent nor is it a punishment of the custodial parent. It is the right of the child to maintain contact and develop a relationship with both parents.

When court ordered access does not take place because of the actions of one parent or the other, the party responsible can expect to be brought back to court. If the access parent consistently misses or cancels access, a judge may curtail the access. Raising a child as a single parent can be an exhausting, all-consuming exercise. The custodial parent has a right to the occasional weekend to him/herself. More importantly, the child has a right to see the access parent and he or she may be disappointed when access visits are cancelled by that parent. If access is persistently missed, the court may order it be suspended rather than expose the child to future disappointments.

Access that is denied by the custodial parent presents a more complex problem. What exactly can the court do? If it fines the parent, the money is coming out of funds that would otherwise be available to spend on the children. If the court imprisons the parent, it can traumatize a child, who may feel somehow responsible. Or a parent who is imprisoned may blame the access parent.

There have been only two cases in Ontario where a custodial parent (both women) was sent to jail for contempt of access orders. In one of those cases the father had to make 60 court appearances to deal with denial of access and enforcement of the order. That the father had to resort to this number of appearances before the court took effective action is indicative of the court's reluctance or inability to effectively enforce access orders. It is an inability that is well-known and encourages access parents to flout access orders.

While the question of how to deal with a persistent denier of access is vexing, courts are losing patience with parents who deny access. Judges are proud people, they do not like the idea of their orders being flouted or their objectivity and fairness being the subject of ridicule.

If one parent is denying access, the other parent's best option is to assemble incontrovertible evidence that the access has been denied. The most common explanations for not making the child available for access are as follows:
o The child was sick.
o The access parent did not arrive to pick the child up on time.
o The child had another special activity.
o The child did not want to go on access.
o Complaint about lack of care or supervision on access visits.
o The access parent is rude or threatening at the access exchange.

In cases of persistent denial of access, these excuses cycle through the case over and over again. A custodial parent may begin to insist on new conditions for access by changing the time or place of pick-up. All the access parent can do is keep a careful record of each incident of denied access. A contempt of court hearing is like a criminal trial with oral testimony from witnesses and a criminal burden of proof. For that reason, access parents must have witnesses to the fact that the child was not sick, or to the fact that the access parent did arrive to pick up the child as scheduled. It is much easier for a custodial parent to escape punishment for not giving access, because contempt of court has to be shown to have been deliberate.

On the other side, if the custodial parent wants to change access, he or she should return to court to change the access order and maintain the existing court ordered access until that time. Although the risk of severe punishment is small, it is not non-existent and there are certain judges who are quite strict about access violations.

TOP

SUPERVISED ACCESS
Supervised access means that access takes place in the presence of a third party. The third party can be a mutually trusted friend or relative, the custodial parent or at a supervised access center. Technically, the law requires that there be a compelling reason to have access supervised and that reason relates to either the ability of the access parent to care for the child or a potential risk of harm to the child either from violence, neglect or possible abduction.

Until recently, supervised access was frequently ordered by courts, often as a form of compromise between a custodial parent who wanted no access and an access parent who wants unfettered contact with his or her child. Lately, however, courts have become increasingly reluctant to impose the unnatural involvement of a third party in what should be the development of a close relationship between a parent and a child. Consequently, the party seeking a supervision order is required to present strong evidence that supervision is necessary.

One situation where a court may generally order supervised access without detailed evidence is the case of a very young infant who is unfamiliar with the access parent. In that case, the court might be concerned that the access parent lacks the necessary skills to deal with a baby who cannot communicate his or her needs to a parent who is unfamiliar with the child's expressions.

Supervised access that occurs in a natural setting, such as the access parent's home, is not as intrusive as access that takes place in a supervised access centre. Such centres are created to fill a need to have a place where parents who are considered unsuitable can visit with the child and prove that they are capable of looking after the child. Unfortunately, these centres do not differentiate between a parent who is simply inexperienced or unfamiliar with the child, and those who pose a potential risk to the child. The rules governing the duration and conditions of the visits at these centres may be inflexible and intrusive. For example, a parent will not be left alone with the child, the parent will not be able to take the child to the bathroom, the parent will look around and see drug addicts or alcoholics and often feel degraded and dysfunctional. Meaningful access is often difficult in such circumstances and an access parent can become frustrated and sometimes angry with the restrictions on their interaction with their child. In addition, lengthy waiting lists for these centers may mean that access will not begin for some months after a supervised access order is made. Finally, there are a limited number of activities at the centers, so often, the child does not enjoy the experience.

To summarize, it is no longer enough for a custodial parent to appear at court and tell the judge that he or she is concerned over some issue or another and wants supervision of access. "Potential" problems may not be sufficient to justify supervised access orders, especially if the only available supervision is at a supervised access centre. The custodial parent must provide details and proof of an existing problem or concern; for example, proof that the child has been hurt during access on more than one occasion or proof that the access parent has a drug/alcohol problem of such severity that it is likely to interfere with that parent's ability to care for the child.

In resisting a request for supervised access, the access parent should, if possible, provide evidence from third parties who have seen him or her with the child and can vouch for his or her behaviour. In addition, the access parent may want to enroll in parenting courses or provide other evidence that he or she understands the seriousness of the responsibility of caring for a child. Finally, the access parent should hold the custodial parent to the standard required to establish the necessity of supervision.

TOP

MOBILITY RIGHTS
The issue of mobility rights arises when the custodial parent wants to move with the child and the proposed move is far enough away from the child's current residence as to make frequent access impossible. Mobility issues usually occur after a final order or agreement has been made concerning custody. Some agreements or orders contain specific restrictions on the custodial parent's right to move with the child beyond a certain distance. Depending on the agreement or order, it may be the custodial parent who is asking the court for an order permitting the move or it may be the access parent who is asking the court to prevent the move.

As with all issues concerning children, the court will focus on the best interests of the child. The parent's reason for the move is irrelevant if it is not in the child's best interests. The custodial parent's wishes will be accorded a large amount of respect, it having been previously determined that the custodial parent is the one more suited to determine the child's best interests, but the courts will not mindlessly defer to the decision of that parent. For example, a parent may have a lucrative job offer in a country that is unstable or potentially dangerous or where there is a comparatively low standard of health care. In such a case, the parent's desire to move may be quite sensible and justifiable, but it may not be in the child's best interests.

The court will assume that it is in the child's best interests to maintain meaningful contact with the access parent. Meaningful contact is not defined simply by time spent with an access parent; it also means the frequency and quality of time spent. The party proposing the move will have to satisfy the court that the access that will have to be substituted for the current access will fulfill the needs of the child with respect to the maintenance and growth of a strong relationship with the access parent.

The party seeking permission to move should prepare a detailed custody plan that includes an evaluation of the facilities available in the proposed locale as compared to those facilities in the child's current location. Costs of living, availability of health care and education, social services and support, the cultural environment, the economic profile of the area are all matters that will be considered by a judge. Failure to properly explore and present this information can derail plans for a parent's proposed move.

The access parent, on the other hand, will highlight those aspects of the move that will be destabilizing to the child, while emphasizing features of the child's current residence that are superior to those of the child's proposed new residence. Areas that should be examined by the access parent in order to show that not changing the child's residence is in the child's best interest include conditions in the new locale such as rates of crime, unemployment, per capita public expenditure on health care, availability of social services and schools.

If the parent is permitted to move, it will usually come at a cost. The amount of time the child currently spends with the access parent will be approximately matched and, depending on the distance, this can mean the child will be away from the custodial parent for weeks at a time throughout the year. Also, the custodial parent may be expected to share or even assume the added cost of travel to facilitate access.

Mobility cases can be quite expensive for a client because of the amount of research and the need to provide persuasive presentation materials. Also, it is very likely that an assessment will be ordered. Finally, early resolution of a mobility dispute is unlikely as it is very difficult to reach a settlement given what is at stake to each party.

TOP

ASSESSMENTS
In addition to looking at a custody or access plan or when evaluating a custodial parent's request to move with the child, the court may also consider the results of an assessment of the child's needs and the ability of each parent to provide for those needs. An assessment is an investigation by an objective third party, usually a social worker or psychologist. An assessment must be ordered by the court.

In addition to being an objective and trained professional, an assessor will spend 20 or 30 hours interviewing the children, meeting with the parents separately and with the children, visiting the proposed households, speaking with teachers and doctors and other people involved in the children's lives. An assessor will confer with the lawyers for both sides and review the documents in a court case to familiarize him/herself with each party's position and each party's custody plan.

Unless the parties consent, a court will only order an assessment if there is a "clinical issue" raised in the custody dispute. A clinical issue is the allegation that one parent is not fit to have custody because of violence or drug/alcohol abuse or for psychological reasons, or because of a particular cultural or religious issue. An allegation that the custodial parent is interfering with access would not be a clinical issue.

Assessments are expensive and generally cost between $3,000 and $7,000 with the cost divided between the parties, sometimes equally and sometimes in proportion to income.

An alternative to the assessment is an investigation by the office of the Children's Lawyer. The Children's Lawyer can carry out one of two functions (or sometimes both), in a particular case. The first and most common function is to conduct a form of assessment called an investigation.

An investigation is similar to an assessment, but with some important differences. First, the investigation will only take place if ordered by the court and the Children's Lawyer agrees that it should be conducted. Second, a Children's Lawyer investigation will not begin for many months after it is ordered, while a private assessment will usually begin within weeks of a court order being made. Also, Children's Lawyer's investigations tend not to be as exhaustive as a private assessment because of strains on the resources of the office. The parties have no control over who will actually conduct the investigation for the Children's Lawyer. In a private assessment the parties can agree on an experienced assessor with certain expertise or skills appropriate to the particular situation. In a Children's Lawyer investigation, the social worker is selected by the office and may have biases or be a recent college graduate without much experience. Finally, unlike a private assessment a Children's Lawyer investigation is free.

Assessments or investigations are critically important and too often a lawyer does not provide the proper guidance or direction to a client. A lawyer should prepare a detailed letter to the client explaining what an assessment is and providing guidance and tips on how the client should behave. For example:
o The client should treat the matter seriously and dress appropriately.
o The client should review all court documents and be prepared to answer questions on any matter before the court.
o The client should be punctual with appointments.
o The client should not insult the other party or the other lawyer.
o The client should focus his or her comments on the child's best interests.
o The client should never discuss the assessment with the child.

TOP

THE CHILDREN’S WISHES
In some cases the court will want to hear or agree to hear from the children if the judge feels that the children are of an age and in a situation where they can freely and intelligently express their wishes to the court. Often a parent will tell their lawyer that the children have said they want to live with that parent. Such statements are to be viewed with some suspicion because it is a rare child who will look his or her parent in the eye and say, "I don't want to live with you."

The age where a court will consider a child competent varies. The older the child, the more likely it is that a court will order representation. Representation will rarely be ordered for a child younger than 10 and the court will not treat younger children's wishes with the same deference it would accord to children who are 13 or 14.

Generally, legal representation is provided by a specially-trained lawyer employed by the Office of the Children's Lawyer, although sometimes private counsel may be appointed. In some cases the lawyer will call for a social work investigation to complement the legal representation.

TOP

CHILD ABUSE
It has been said that the investigation of an abuse allegation is sometimes more harmful to the child than the alleged abuse itself. Regardless of whether this is true or not, if you believe your child has been abused, you have to take action. Some of the steps you should take are as follows:
o Write down everything your child has said. You may consider making a recording, but you must be careful not to be seen to lead the child. Just ask "What happened last night?" Try to get as many details as you can without leading the child or making the child feel uncomfortable although this might not be possible.
o Preserve any physical evidence.
o Consider what your child has told you as rationally as possible. Does it make sense?
o Take the child to his or her doctor as soon as possible. If this is not possible take the child to an emergency ward or walk-in clinic. If the doctor feels that something has happened he or she has an obligation to involve the Children's Aid. If possible, try not to be present when the doctor examines the child.
o In general, do not call the police first. Your first order of business should be having your child medically treated and having him or her speak with a trained social worker.
[This is not an exhaustive list and you should contact a professional as quickly as possible for more information.]

If you have a history of being "unreasonable," or if you have opposed or denied or interfered with access, or if you have made previously unfounded or unproven accusations to support your custody claim, then you may find your allegations of abuse to be viewed skeptically by the courts. If your history in the litigation process is one of being cooperative, focused on the child's needs and absent any rancour or bitterness toward the other spouse, then your accusation of abuse will have much more credibility with the court.

If you are an access parent and a false allegation of abuse has been made against you, you must prepare yourself for a great deal of stress. Your family law case will now assume overtones of a criminal investigation. It will be necessary to rigorously examine and test the evidence of your accuser. This will require out of court examinations and interviews with witnesses and experts. You can expect your access to be curtailed until the allegations have been dealt with.

TOP

CHILD ABDUCTION
Sometimes children are abducted and taken out of the province. Usually this is done by the access parent, but often the custodial parent will take flight or go into hiding with the children. There are a number of orders that a court can make to force third parties such as banks, phone companies, credit card companies and airlines to divulge information that results in locating the whereabouts of the parent.

Police officers at the local, provincial and federal level can be ordered to assist the family lawyer in locating the child. Criminal charges may also be laid and warrants issued. Any information that the custodial parent has concerning the access parent, especially regarding credit cards or location of bank accounts and cellular phone numbers can be critical to locating a child and that information should be provided to the police and to the custodial parent's lawyer.

In addition, if the child is taken to another country, an international convention may be called upon to secure the other country's cooperation in locating and returning the child. This treaty is known as the Hague Convention and is administered in Ontario through the Ministry of the Attorney General. Success of Hague applications in large part depends on the efficiency of the judicial system in the country where the child has been taken. The United States has an extremely efficient Hague enforcement structure, while many European countries are less reliable and much slower when it comes to Hague enforcement.

TOP

Passports and Travel Outside the Country

Because of recent changes in how children's passports are issued by the government of Canada and because of either a growing number or growing awareness of parental abduction, greater co-operation and/or involvement is now required when it comes to obtaining passports for children or arranging a trip outside the country with children, even if the parents are happily married.

There was a time when a custodial parent could "put" the child on his or her passport. Now however, the child must have his or her own passport and both parents must sign the application. In situations of conflict where mistrust and suspicion exist, the "other" parent is often reluctant to sign the passport application. Sometimes, this reluctance is understandable, if not justified. If, for example, there has been a threat to take a child back to the country of the custodial parent's origin or if there has been a threat or even discussion about moving out of Canada to find employment elsewhere. Often, however, this reluctance is based on less reasonable motives.

If one parent refuses to sign the passport application, there are things the other parent can do:

1. Attend at a lawyer's office and complete an affidavit setting out the efforts that the parent made to get the other parent to sign the application. Also, provide the address and phone number where the other parent can be reached. The passport office will attempt to contact the other parent and if the other parent refuses to sign for a period of thirty days, the passport office may allow the passport to issue without that parent's signature; or,

2. Obtain a court order that the other parent sign the passport application. If the other parent refuses, then he or she will be in contempt of court. At the same time (but possibly if there is only an existing custody order in favour of the parent applying for the passport), a court may order that the one parent be free to apply for the child's passport without the other parent's consent. It is unlikely that a court has the jurisdiction to order that the other parent's consent be dispensed with. This is a fine technical distinction, but there is no authority that allows such an order to be made and if it is sought, the Passport Office should be joined as a party to the motion or application.

Sometimes there is an existing passport for a child but the one parent refuses to give it to the other. The parent seeking the passport can inform the passport office that the passport has been stolen and the passport office may issue a new one. Again, the parent may also apply to court for an order that the passport be returned.

A passport is a form of property. To the extent it is property, it is the property of the Government of Canada - not the property of the passport holder and certainly not the property of a parent. For that reason, any application to court should probably be brought in the Superior Court of Justice or Superior Court of Justice, Family Court.

Also, please notice that neither involving the passport office or going to court is going to result in a particularly quick resolution of the problem, so these problems should be dealt with well in advance of any planned trip.

In addition to having a valid passport, a person traveling abroad with a child will generally need a travel consent form. This is a form signed by one parent that signifies that parent's agreement that the child can travel out of the country with the other parent. There is no set form for this document. The document should be witnessed -- preferably by a Notary Public. It should also contain the dates during which the child will be out of the country and the location of the visit.

If the other parent refuses, the party wishing to travel with the child can apply to court for an order that he or she be permitted to travel outside the country with the child with no parental consent form. The parent making such an application should include details about the trip including departure and return dates and at least a general itinerary.

If there is one thing that cannot be stressed strongly enough, it is this: DO NOT PLAN A TRIP OUTSIDE THE COUNTRY WITHOUT FIRST HAVING A PASSPORT FOR THE CHILD AND IF POSSIBLE A TRAVEL CONSENT FORM SIGNED BY THE CHILD'S OTHER PARENT OR A COURT ORDER DISPENSING WITH THE NEED FOR SUCH A FORM.