"Travel is a desirable experience for young people, particularly to meaningful locations and to reconnect with extended family…When determining whether to allow a parent to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks. The weighing process is necessarily fact specific” – Agarwal J in M.D. v. A.D., 2022ONSC 5136 (CanLII)
The Principle
A parent’s travel with a child is a subset of parenting time that sometimes intersects with larger conversations about a child’s education, heritage, religious and cultural upbringing. These considerations are sometimes complicated by the risks of parental abduction. To resolve travel disputes, the court will weigh the benefits and risks of the intended trip on a case-by-case basis. The primary consideration is always given to the child’s physical, emotional, and psychological safety, security, and well-being.
The Facts
In M.D. v. A.D, the parties married in February 2013 and separated in August 2021. There was one child of their marriage, who was turning 4 years old. The applicant/mother brought an urgent motion to travel with the child to India for a 15-day Hindu ceremony (“Pitru Paksha Shraddha”) in commemoration of her recently deceased mother.
The mother’s originating court application was unusual as it did not include the typical reliefs for a parenting plan, support or divorce, but merely sought to travel with the child. The respondent/father opposed the request due to concerns that the applicant mother might not return to Canada. He argued that the travel plan’s coincided with the child first six weeks of Junior Kindergarten, the mother had no other family in Canada, she had not completed her licensure to practice as a pharmacist in Canada; her assets and family were in India. The father’s concerns were exacerbated by the fact that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
The applicant mother claimed she wanted to remain in Canada and was willing to provide a travel itinerary and communication plan. She explained that she works full-time in a fertility clinic in Canada and was willing to divide their time in India between her father and her in-laws, all of whom live within 5 miles of each other. The applicant further argued that it was not mandatory for the child to be enrolled in kindergarten, at his age. She argued that the presence of all male family members (including the child) at the ritual will unite the family and help the departed accept their prayers. The father argued that he could facilitate the child’s observance of those religious rites in Canada.
The Ruling
The court acknowledged that being raised Hindu, the child had a strong interest in participating in this ritual which honours his deceased ancestors.
However, the court found that the child’s right to participate in this ritual was outweighed by the need to protect his physical, emotional, and psychological safety, security, and well-being. In coming to this decision, the court placed significant weight on the father’s concerns in relation the risk of abduction, including the child’s age, mother’s lack of ties to Canada, and her refusal to attorn to Canadian Jurisdiction. In commencing her case in Canada, the mother did not file for divorce or seek any corollary reliefs except for travel with the child. In doing this, the mother reserved the right to sue for divorce in India, which increased the concern that she would not return.
Our Thoughts
In cases of disputed custody or access, a parent seeking to travel with the child to their home country must present solid evidence that there are significantly more reasons to return than abscond from Canada with the child. Every case will depend on its unique facts, the only constant is the overarching principle – the child’s physical, emotional, and psychological safety, security, and well-being.
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