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Posts from the ‘Passports’ Category

Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

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Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

In a recent case called Stoughton v. O’Ney, the court faced a unique problem that it described this way:

Sarah and Jessica are the parents of Rory who is a 4 year old boy. Currently, they share parenting time with him on an equal basis … Sarah lives in Niagara Falls, Ontario and Jessica lives in Niagara Falls, New York.  Rory is a dual citizen of Canada and the United States.  Because of the international border, it is not practical for Rory to continue this schedule once he attends school full-time. He must have primary residency with one parent and attend school either in the United States or Canada.  As he should begin school in September 2019, this issue must be resolved.

The court also prefaced its ruling with a comment on the difficulty of the task:

From all of the evidence that I have heard, it was evident that Rory is a lovable, intelligent child and that Rory has two loving mothers who want only the best for him.   Both mothers acknowledge that the other mother only wants what is best for Rory.

This makes the issue of where Rory should attend school, and what the arrangement for his custody should be, very difficult.

The court explained that Rory was born in 2014 in Buffalo, New York after Jessica was impregnated with an anonymous sperm donor. The couple then lived in Ontario immediately after they were married in Canada that same years.

The court started with the observation that joint custody was not an option in this scenario;  it would have to make a sole custody determination, which would in turn dictate both Rory’s primary residence, and the school he would attend.

After emphasizing that the best interests of the child always govern such determinations, the court noted in passing that even for same-sex parents, Rory’s best interests are also the sole governing test.  The law also states that for children conceived through assisted reproduction, each of the spouse are considered to be parents for these purposes, and both have an equal right to custody.  Finally, the goal of maximum contact with each parent is a mandatory consideration, but if the parents are to have joint custody, then there must be a high level of cooperation and communication.

Both mothers gave evidence, as did various extended family members on both sides.  The court heard a litany of testimony around various issues, including the details of their same-sex marriage ceremony in both New York and Canada, how each parent characterized the parenting skills of the other, allegations of dishonesty and abusive conduct, issues and conflict with extended family members, and numerous aspects pertaining to the relationship with the child.

The court also heard the respective plan that each parent had for Rory, in the event that sole custody was granted to them, including the plans relating to schooling.

Sarah’s plan involved having him attend a small U.S. private school close to her work.  It had very small class sizes and the capacity to deal with Rory’s special needs, and could accommodate his weekly speech therapy sessions.

Jessica, in contrast, had done little research on Ontario schools, other than to look into what schools were in her neighbourhood.  She had not explored what services might be available to Rory in Ontario schools.  The court heard the unbiased evidence of the private school principal, over that of Jessica whose evidence appeared to be self-serving.

While noting that both proposed plans had advantages for Rory, the court found the plan proposed by Sarah was overall stronger, and in Rory’s best interests.  It also noted differences in the cooperation levels between the two parents.  In an almost 300-paragraph ruling, the court summarized its conclusion this way:

Because of Jessica’s actions in the past, I have grave concerns that if she were granted sole custody and primary residence of Rory, she would effectively cut Sarah out of Rory’s life.  Because of the inclusive way that Sarah has acted in the past, I have no such concerns if she were granted sole custody and primary residence of Rory. …

I find that Sarah is clearly able to meet, and has been meeting, Rory’s needs, both emotional and physical.  Very importantly she has been doing this in a way that is very inclusive of Jessica, ensuring that Jessica is a part of that journey.

I find that after a gap of over one year, Jessica has taken steps in New York to provide for Rory’s needs, but has done it in a way that totally excludes Sarah from that process.

The court ordered Sarah to have sole custody of Rory, and he would attend school in the Niagara Region of Ontario. Jessica was allowed stipulated access (including overnights), and was ordered to pay a set level of child support, and was entitled to participate in parent/teacher interviews, and to be given copies of his report cards, among other things.

For the full text of the decision, see:

Stoughton v. O’Ney, 2019 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at


Canadian Law At-a-Glance: Passports for Kids

Canadian Law At-a-Glance: Passports for Kids

With winter break right around the corner, it’s a good time to touch on the requirements for obtaining or renewing your child’s valid Passport. Here is what you need to know:

Does My Kid Need a Passport?

The short answer: Yes.

All Canadian children – from newborn on upward – require their own Passport in order to travel. Any Passport issued for your child is valid only for a maximum of 5 years, at which time it expires and must be renewed.

Who Can Apply?

If your child is under the age of 16:

• The Passport application must be submitted by at least one of the child’s parents (or legal guardian, in which case proof of legal guardianship must be provided).

• Ideally, however, you and the other parent should both sign the application, because the Passport Program may contact the other parent in any case.

• If you are separated or divorced from the child’s other parent, then the parent who has custody of the child is the one eligible to apply. In that case, you must provide copies of any separation agreements or relevant court orders to the Passport Program.

If your child is aged 16 or over, then he or she must submit their own Passport application, since for these purposes they are considered an adult.

Say “Cheese”

Along with the filled-out application form, you must also provide a photo which will appear in your child’s Passport.
Under the current requirements, the photo must have been taken in the last 6 months, must be taken in person by a commercial photographer, and must otherwise conform to certain specifications set out by the Government of Canada’s Passport Program. If the photo does not comply, your child’s Passport application will be rejected.

Fees and Process

When you submit your child’s Passport application form, you must also include payment of a fee, which is currently set at CAN$57. There are additional fees for “express” or “urgent” processing (and note that those are two different things), which expedited service must be requested in-person at a Passport Office that offers them.

Processing times will vary according to where and how the application is submitted (i.e. in person, or by mail) and range from between 10 and 20 business days.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at

Travel Outside Canada: Will My Child Custody Arrangement Be Recognized?


Travel Outside Canada: Will My Child Custody Arrangement Be Recognized?

Recently I wrote about how to apply for a Canadian Passport for a child. But with the prospect of Canadian children travelling abroad, separated or divorced parents may have concerns over what might happen if their child custody issues flare up while they are at their destinations or even en route. Here are some things to think about:

First Things First

• Long before you even decide to travel with your child out of Canada, make sure your specific custody agreement or separation/divorce order allows it. This may involve some consultation with a lawyer, but it will avoid last-minute disputes or disappointments after you have already incurred the expense of travel.

• Make sure you have a Letter or Permission (sometimes called a Letter of Consent), signed by the other parent, which gives you his or her permission to enter or leave the country with the child. Although it is not a legal requirement in Canada, it can make travel much easier because some foreign immigration authorities may ask to see it before allowing you to enter or leave.

• Ensure that you have proper identification for both you and your child. This includes not only a valid Passport for each of you, but also evidence of residency, and documents to provide evidence of your custodial rights as well.

• Consult with the Government of Canada website [link to] that provide various Guides for parents considering travel with their children.

Could My Canada-Issued Custody Order Come into Question?

Be prepared for the possibility that your Canadian child custody order – though validly issued and fully enforceable in Canada – may not automatically be recognized in the country to which you are travelling. This may result in difficulties when leaving the country.

In countries where you think this may become an issue, you may want to confirm your own status or that of your child with the country’s Embassy or Consulate in Canada, before you travel.

What if a Custody Issue Arises While We Are Away?

Ideally, you and your child will be travelling with either the written consent of the other parent, or with proof of court-ordered entitlement. However, in some unfortunate situations, a custody dispute might arise while you and your child are abroad.

In that case, you can contact the Case Management Division of Global Affairs Canada. These officials can provide you with information about:

• The legal system in which you are travelling, and specifically relating to family law and local customs;

• The contact information for local lawyers, as well as that of family counsellors and social workers; and

• How to answer questions posed by local officials as to the purpose and certification of the Letter of Permission that you have supplied in the course of travelling.

These officials may also serve as a liaison for you between local authorities and Canadian ones (such as law enforcement, social services, etc.).

With that said, note that Canadian government officials located abroad do not have authority to:

• Intervene in private legal matters (including your family and custody dispute);

• Provide legal advice;

• Take legal procedural steps towards enforcing your Canadian custody agreement in that other country;

• Force the other country to make a specific determination in your custody case; or

• Provide financial assistance to you in connection with pursuing your legal rights, or for travel, accommodation or other expenses.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at

Considerations for Separated Parents Traveling Abroad


Considerations for Separated Parents Traveling Abroad

We were recently browsing through Jeff Lander’s article Divorced Women: Take Precautions Before Your Children Travel Internationally With Your Ex-Husband published in Forbes. Jeff offers an interesting take on the dangers of allowing your children to travel internationally with your husband, although really these warnings could be equally applicable for either spouse.

The warnings presented by Jeff in his article should be considered seriously by divorced parents in Ontario, but it may be wise to take a second and consider whether it would be preferable to avoid escalating things. Jeff’s advice to require a bond or financial insurance from your spouse before allowing travel should not be the status quo for most divorced couples and although the article makes the practice of requesting a “Ne Exeat” bond seem typical this is not the case in Ontario.


In Ontario, even though you may not trust your spouse, unless you have evidence proving that s/he is a flight risk, the default assumption is that s/he should be allowed to travel internationally with your children. This is the position that most courts would take in Ontario and it would be wise to keep that in mind before trying anything rash. The court will decide these kinds of custody and access issues by considering the “best interests” of the children and in most cases it will be found to be in the children’s interests to be allowed to go on a vacation with either spouse.

In the case where you do believe that the other parent is a flight risk Ontario women can take steps to protect their children. If seriously concerned it may be the best course of action to immediately initiate a court action in order to keep the children in a safe place or to get a court order for possession of their passports. In situations where it is only a possible flight risk, then it may not be wise or financially plausible to take this route. An alternate solution would be to take a page out of Mr. Lander’s article and negotiate having your spouse pay a bond into court or to you in the style mentioned in the article. This middle of the road solution could save you from an otherwise heated and expensive battle in court.

In most cases in Ontario, when a parent wants to travel internationally with their children, the only thing they require is a letter of consent to travel from their spouse. A consent letter may be requested by immigration authorities when leaving the country, when entering or leaving a foreign country or upon re-entry to Canada. A common courtesy in this situation is for the traveling parent to provide the travel itinerary for the children in advance of the trip to the parent remaining at home and all relevant contact information. This is not a requirement under Ontario law but it can be incorporated as a requirement under a separation agreement or in a court order where young children are involved.

To learn more about divorce in Ontario, contact Russell Alexander, Collaborative Family Lawyers. Russell Alexander focuses exclusively on family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

Need a New Year’s Resolution? Update Your Important Documents!


Need a New Year’s Resolution? Update Your Important Documents!

We recently wrote about certain changes to the Canadian Passport application process had been implemented recently, and that with the holidays approaching it was important for those who intended to travel to ensure their documents were in order.

The truth is, there is no need to wait until travel plans are imminent or until other important milestones occur (such as a marriage or divorce, or a death in the family) to do a little checking up on the state of your important documents. Consider it a New Year’s resolution to add to your list (but one that you actually stick to).

Here are a few suggestions to consider:

• Travel, Health and Medical Information. In addition to making sure that these documents are safeguarded in a secure-but-accessible location, it’s also important to verify that they are current. Is your Passport due to expire soon? Do you have ready access to your Health Card if needed? For any children that you have, are their Immunization Records up-to-date?

• Testamentary Instruments. It’s never a bad idea to review your Will regularly – perhaps every year or two. While this is particularly true where life events have prompted a needed change to designated beneficiaries (for example where there has been a divorce or where a beneficiary under your Will has died), other personal circumstances or simply the sheer passage of time may prompt your wanting a change.

• Insurance and Investments. Similarly, anytime you have designated a beneficiary, for example in connection with your life insurance policy, or in an RRSP, it is important that you give periodic consideration to whether the designation remains appropriate as time passes. You should also give some thought to whether a secondary or residual beneficiary should be named, in case the primary beneficiary passes away first.

• Powers of Attorney. Whether you have a Power of Attorney for Property or a Power of Attorney for Personal Care (or both), you should review these documents on a periodic basis and consider whether they still reflect your wishes in the event you become incapacitated.

There are many other documents and personal information that could benefit from a periodic review; this list is merely a good starting point.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at

Kids and Travel – Interactive On-line Form for Letter of Consent

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Kids and Travel – Interactive On-line Form for Letter of Consent

In past Blogs we have discussed the various issues and requirements around children’s Passports,  and the application process for obtaining them. Obtaining a Passport for a child becomes particularly important in situations of separation and divorce, since if one parent wants to travel with the child, then the other parent must usually agree to (or at least condone) the intended plans.

The Government of Canada strongly recommends that even after a valid Passport has been issued, any time there are plans made by one parent for a child to travel outside Canada, whether accompanied by that parent, alone, or with another person (e.g. a relative or family friend or in a group), a Letter of Consent should be obtained from the other parent. For these purposes, a “child” is anyone under the age of majority.

While strictly speaking it is not mandatory, the Letter of Consent serves as evidence that the child has the consent of both parents to travel. It is signed primarily by the individual(s) with the legal right to make major decisions for the child (i.e. the custodial parent or guardian); however, even if it is a parent with sole custody who is travelling with the child, to be on the safe side it is recommended that Letter of Consent be filled out by any parent or other individual with access rights.

The Letter of Consent can be presented upon demand by immigration authorities when entering or leaving a foreign country, or by Canadian immigration officials upon the child’s return. While having a Letter of Consent handy does not guarantee that there will be no difficulties crossing a border, it will likely make the process much faster and easier.
Although there is no standard form, and no official guidelines for its contents, the federal government website now has a interactive on-line form that can be modified and filled out to fit each situation. It is always recommended that the Letter be completed with as much detail as possible.

Finally, the Government of Canada has a useful Frequently Asked Questions page , which sets out the answers to questions arising in various travel scenarios.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

Top 10 Familyllb’s Blogs of 2012

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Top 10 Familyllb’s Blogs of 2012

Well it has been another busy year for us as our blog has been viewed over 150, 000 times and we have received over 500 comments.  Thank you to everyone for your continued comments and support.

So in keeping with the year in review theme, here are our Top 10 Blog posting for 2012.

Number 10: New Proof of Parentage Requirements When Travelling with Children

This Blog examined why it’s important for parents to know that effective December 1, 2011, there are new proof-of-parentage requires for applications relating to travel by a child. These requirements are aimed at protecting Canadian children against child abduction, and designed to further enhance the security of the Canadian passport system.

New “proof of parentage” documentation required.

After December 1, 2011, for standard passport applications respecting children under the age of 16, the change involves a new requirement:  every application must be accompanied by “proof of parentage” documentation.

Number 9: Top Five Lottery Cases in Family Law

Lottery wins are a once-in-the-lifetime stroke of good fortune.   (At the least, they certainly happen less frequently than anyone hopes).  But in the case of married or common-law couples who buy the winning ticket, the joy of having a monetary windfall can quickly become tainted if they later separate or divorce, because issues often arises as to who gets the money, or how it is to be split.

So, in the unlikely event that these become relevant to our readers, this Blog reviewed the top five interesting lottery cases from across Canada.

Number 8: Ontario’s Bill 133 & Regulation for Pension Division to Commence January 2012

This Blog reviewed Ontario’s Attorney General Chris Bentley report that starting January 1, 2012, the pension division and valuation provisions in the Family Statute Law Amendment Act, 2009 will come into force. The changes are designed to make the family justice system more affordable, faster, simpler and less confrontational

Number 7: Top 5 Web Resources for Kids of Divorcing Parents

One of the most regrettable and usually unavoidable aspects of separation and divorce is the impact it can have on the children of the marriage. Even the most amicable separation-and-divorce scenarios are rife with challenges for all the parties, not the least of which are endured by the children who are the most emotionally ill-equipped to handle them. Parents may have difficulty knowing how best to support and accommodate their children’s needs during the difficult transitional period that inevitably accompanies the change in family lifestyle.

This Blog provided a list of the “Top 5” websites aimed at helping children through this phase.

Number 6: Wife Plans to Sue Ontario Family Responsibility Office for Husband’s Suicide

In the past few years, the government of Ontario implemented legislative amendments allowing drivers’ cars to be impounded and / or their licenses to be suspended in cases where they have failed to pay child support. This Blog took a look at how, according to a London, Ontario woman, this impact has directly caused the suicide of her common-law husband.

Number 5: 5 Ways to Make Sure Your Separation Agreement is Valid

Separation agreements can be a useful means by which separating spouses can take first steps toward unwinding their financial and family-related affairs by way of a mutual agreement. This Blog provided aa list of the top five ways to ensure that a separation agreement is valid and enforceable in Ontario.

Number 4: Top 5 Things to Know About the Canada Child Tax Benefit

 Soon it will be time to start thinking about individual income taxes, and all of the various components that go into providing the federal government with a financial “snapshot” for the past year.

For separated or divorcing spouses with children, one of those components is the Canada Child Tax Benefit (CCTB).

The Canada Revenue Agency (CRA) administers the CCTB, which is a monthly, tax-free benefit received on behalf of a child under the age of 18. Its purpose is to assist families with child-raising costs, and its value depends on family income, among other things.

This Blog examined 5 things to keep in mind about the CCTB.

Number 3: Top 10 Things to Know About Children and Passports

In this Blog we examined the relatively recent changes to children and the need to travel with passports.

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.

Number 2: Top 5 Questions About Adultery and Divorce in Ontario

It seems that celebrity gossip tabloids will never have a shortage of topics to cover, as long as there are stories about extramarital affairs by successful, high-profile celebrities. Most recently, it has been alleged that Arnold Schwartzenegger fathered a child with the housekeeper employed in the home he shared with his wife of 25 years; prior to that, Tiger Woods has admitted to having sexual trysts with at least 14 women outside of his relatively short marriage.

In this blog we examine the role of adultery and Divorce in Ontario.

Number 1: 10 Things You Should Know About Child Support

This continues to be a very popular post and is evidence of the ongoing need that parents have to for information about child support.  This blog examines how all dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child. This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody). Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

There you have it.  Our Top 10 Blogs for 2012.  Thank you  again to everyone who have visited our Blog and all your continued comments and support.

Children Denied Overseas Trip to Visit Ailing Grandmother; Court Suggests Using Skype Instead

Children Denied Overseas Trip to Visit Ailing Grandmother; Court Suggests Using Skype Instead

In Hamid v. Hamid, the primary issue for the court was whether the mother of the three children of the marriage (who were aged 11, 7, and 6) should be allowed to travel with her to Pakistan to visit their ailing grandmother.  The father, from whom the mother had been separated for two years, adamantly opposed the trip, partly on the basis that Pakistan is too dangerous for the children.

The mother’s evidence was that although the maternal grandmother was not dying, she was clearly ill. Despite being only 69, she had cancer, diabetes, and a cardiac condition.  The grandmother had applied to the Canadian government for a visitor’s visa in 2010, but had been denied on the basis that she was a risk to remain in Canada.    As such, the mother pointed out that the only way the children could visit with their grandmother – whom they had not seen since 2003 – was for them to travel to Pakistan.  In light of her poor health, the planned may be the only opportunity for the children to spend time with her before she dies.

The father, on the other hand, claimed that the chaotic political and social situation in Pakistan made it too dangerous, and that were the children to travel there, they would be exposed to an unwarranted risk of harm.  (He also claimed that the mother was a flight risk, and since Pakistan is not a signatory to the Hague convention, he would have no legal or court-ordered recourse if she decided to remain there.   However, in prior decisions the court has held that the mere fact that a parent applies to travel to a country that is not a signatory to the Hague Convention does not mean that the application should be denied unless there is evidence that the children might possibly be abducted.  There was no such evidence in this case.)

The court examined the father’s safety-based objections to the mother’s travel plans to Pakistan.   He had produced documentation about the current political and social climate in that country, including a recent 10-page travel advisory report from the Canadian government that started:  “OFFICIAL WARNING: Foreign Affairs and International Trade Canada advises against non-essential travel to Pakistan.”  The report described the current security situation as being “fragile” and “unpredictable”, and indicate that the threat of terrorism remained “very high,” and that they had taken place in “public areas, such as hotels, markets, transportation hubs, Western-style fast food outlets, restaurants, and religious sites, including places frequented by foreigners.  Only the best hotels, with stringent security, including metal detectors, should be used; however, no location should be considered free of risks.”

 The report also discussed other dangers such as kidnapping, armed robbery, random shootings, and armed car-jackings. .

To counter these reports, the mother filed evidence that the grandmother in Pakistan had not complained about any of the issues raised by the father, and that she had food, water, electricity, and medical care.   If allowed to go, the mother also committed to adhering to the travel advisories, to avoiding any “hot spots” while in the country, and to returning to Canada immediately if she felt the children were in danger.

While accepting that the mother was sincere and genuine in her desire not to place the children in harm’s way, the court stated:

“However, danger – whether it emanates from crime, terrorist attacks or other sources, by its very nature makes victims of similarly like-minded persons, specifically, persons who would not knowingly place themselves in threatening situations.  It is a truism that no one walks along a street knowing that a terrorist bomb is about to explode nearby; no one drives a car knowing it is about to be carjacked; no one would go to any location knowing in advance, they might be kidnapped, assaulted or terrorised in that location.  Yet people – ultimately victims – do these things unwittingly, and these terrible events do occur.”

While conceding that there was undoubtedly a benefit to allowing the children to see their grandmother – and while admitting that the children may feel let down by the court’s decision – the court emphasized that the potential benefits had to be balanced against the risk of harm to the children.  In this case, the benefits simply did not outweigh the risk.  The mother’s motion was dismissed, although the court indicated that if the climate in Pakistan were to change, the children may eventually be able to travel there to visit.  The court also suggested that in this technologically advanced world, the children could have face-to-face “visits” with the grandmother by way of Skype or footage on DVDs.

For the full-text of the decision, see:

Hamid v. Mahmood, 2012 ONCJ 474

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at

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