Top 10 Things to Know About Children and Passports
With Spring Break coming soon, and summer holidays being just around the corner, it’s a good time to revisit the law in connection with passports for children of parents who are separated or divorced.
Since June 1, 2009 all Canadians, including children travelling to the U.S., must present a document that is compliant with the Western Hemisphere Travel Initiative (WHTI). For entry into the U.S., this includes a Canadian passport or a NEXUS card when available.
2. A parent or specified adult must make the application.
Children over age 16 can apply for their own passports. For children under that age, a Canadian federal regulation titled the “Canadian Passport Order” outlines who can apply on the child’s behalf. The list includes:
• One of the child’s parents;
• The custodial parent, in the case of separation or divorce; and
• The child’s legal guardian.
3. A photo of the child, plus proof of Canadian citizenship is needed for the passport application.
This includes a birth certificate or a certificate of Canadian citizenship. Also, the child should be involved in making the passport application if at all possible; while there is no strict requirement for the child’s presence or participation when a parent or legal guardian applies, the child should ideally be involved and should sign the application form if entitled to do so.
4. Where the parents are separated or divorced, there are special rules.
In such cases the following stipulations govern:
• The parent with custodial rights may apply on the child’s behalf.
• If joint custody provisions exist, then either parent may apply, but both parents must provide their consent by signing the application.
• In cases where one parent has sole custody, the custodial parent should apply; the consent of the non-custodial is not mandatory if he or she has “reasonable access”.
• If one parent has sole custody but the non-custodial parent has specific access, then his or her signature must appear on the application (although in some specific scenarios, a passport may still issue without it).
5. All documents relating to child custody, access or mobility should accompany the passport application.
This is to satisfy Passport Canada that the terms of a court order or separation agreement will not be breached if a passport is issued. Therefore, in cases where a divorce has been granted, a copy of the divorce judgment should be provided; similarly, a copy of any separation agreement should be supplied by the parent or parents who make the application.
6. Mobility restrictions may have to be accounted for.
If, as part of a separation agreement or divorce judgment, there are mobility restrictions in place which place limits on the ability of the child to travel or move residences, then a passport will not be issued, unless:
• the restriction has been removed by a court order;
• the court has issued an authorization to travel; or
• both parents have consented.
7. If the other parent cannot be located, a court order may be needed.
In cases where the parent making the application cannot locate the other parent, then a court order may be sought, confirming that the custodial parent can apply for a passport without the other parent’s involvement. Alternatively, a statutory declaration attesting to the location of the other parent may be acceptable in some circumstances.
8. A court order may be necessary if the other parent refuses to co-operate.
If there is joint custody but the other parent refuses to consent to the application, then the parent making the application must obtain a court order allowing for the application to proceed without the needed consent. Also, in cases of high conflict where the parent making the application is fearful of contacting the other parent, or where there is a restraining order in place, the court can make an order allowing the application to proceed without the other parent’s participation. In some cases, Passport Canada may also send a consent form directly to the non-custodial parent for his or her signature.
9. Separation after-the-fact is irrelevant.
Even if the parents have separated after the child’s passport was issued, the parents remain free to use it. Passport Canada will not ask a parent to return a validly-issued passport in these circumstances, even if custody, access or mobility has changed since the passport was issued.
10. A Letter of Consent should still accompany the valid passport for travel.
Even if a valid passport has been issued for the child, any time they are scheduled to travel outside of Canada – whether alone or with one parent or other relative – a Letter of Consent should be obtained from the other parent. This serves as evidence that the child has the consent of both parents to embark on the trip.
The rules surrounding passport applications for children in cases involving separation and divorce will differ according to the facts of each situation. Consultations to explore the issue with Mr. Alexander and or his staff can be arranged by contacting 905.655.6335.