Passports for children under 16 years of age
By Diana Andai and Estelle Marion
With changes in passport requirements for entry into the United States and the general increase in worldwide travel, it has become especially important to deal with the issue of passports and travel for children when drafting separation agreements and court orders.
To avoid delays in obtaining passports for children, Passport Canada is urging that agreements and orders be unambiguous on matters involving travel with children. These must contain clear wording to reflect any travel restrictions or consent that may be needed.
In the processing of children’s applications, Passport Canada requires that applicants submit all documents that refer to custody or, mobility of, or access to the child as evidence that the issuance of a passport in the name of the child is not contrary to the terms of a court order or separation agreement. Furthermore, starting Oct. 1, 2012, a proof of parentage document will be required for children. The only documents accepted as proof of parentage are a detailed birth certificate indicating the name of the parent(s) or an adoption order indicating the name of the adopting parent(s). Some exceptions may apply. Additional information can be obtained on the Passport Canada website.
Applying for a passport in the name of a child
A child can apply to obtain a passport at 16 years of age. Section 7(1) of the Canadian Passport Order (hereafter the Order) stipulates who can apply on behalf of a child under the age of 16. A copy of the Order can be obtained on the Justice Canada website.
In the case of separation and divorce, Passport Canada has very precise rules about who can apply for the passport in the name of a child and which parent’s signature is needed. In a situation of separation or divorce, the applicant for the passport must be the custodial parent or, in the case of joint custody, it can be either parent. In cases of joint custody, both parents must sign the passport application form. In cases of sole custody, even though one parent may apply for the passport (the applicant), the signature of the non-applying parent (other parent) is generally also required. The requirement for the other parent’s signature depends on what type of access the other parent has been granted. If the other parent has been granted “specific access,” their signature is required. However, even if the signature of the other parent is missing, under some circumstances, the passport may still be issued if other requirements are met. If the other parent has been granted “reasonable access,” their signature may not be required. For separation agreements and court orders that do not use the term “custody,” Passport Canada will assess the language used in the documents submitted and may consider the primary residence of the child to determine who can apply for the passport. Some of this information is provided on the passport application form which can be viewed online.
Passport matters in agreements and orders
When Passport Canada receives a passport application for a child, it examines all separation agreements and court orders to determine custody and access arrangements and whether any mobility restrictions exist. Passport Canada also looks to see if there are any instructions outlined as to who can apply for the passport and who has to consent.
Consent is given when the non-applying parent signs the application form which indicates to Passport Canada that he or she consents to the issuance of a passport to his or her child.
It is helpful to include clauses about consent in separation agreements and court orders. To exemplify, a court order could state that the custodial parent has the necessary authority to apply for a passport in the name of the child without the other parent’s consent, or the court order or separation agreement could stipulate that both parents must consent to the issuance of the passport. Without this type of clause, Passport Canada may issue a passport without the consent of both parents since, as described above, in certain cases, the other parent’s signature is not always required.
For instance, in a sole custody situation where one parent has custody and the other parent has reasonable access, Passport Canada would only require the signature of the custodial parent. However, if the court order or agreement contains a clause specifically requiring the consent of both parents in a passport application, Passport Canada will not issue the passport without the signature of both parents.
Mobility restrictions (non-removal clauses)
Passport Canada also carefully examines any mobility restrictions in the agreement or order and abides by the principle that no passport will be issued if there is a mobility restriction with a non-removal clause. This means that in cases where the parents or courts decide that the children cannot be removed from a specific jurisdiction, Passport Canada will not issue a passport unless the parents conclude a new agreement or obtain a court order authorizing the children to travel.
If abduction is a concern, a non-removal clause should be included in the agreement or court order. A mobility restriction (non-removal clause) can be imposed on one or both parents having time with the child. Usually, if there is a mobility restriction imposed on the parent who has the authority to apply for a passport (custodial parent), no passport will be issued. However, if the mobility restriction is regarding the non-custodial parent or for both parents, it is recommended that one of the parents advise Passport Canada to add the name of the child to an alert list.
Consent provisions can also be included in non-removal clauses and some parents may wish to use clauses that say the child cannot be removed from the province of X or Canada without the consent of both parents. In this case, both parents must sign the passport application regardless of the type of access granted. If one signature is missing, a court order will be required to authorize one parent to apply for the passport without the signature of the other parent, to remove the mobility restriction clause, or to vary the clause to permit the child to travel.
Confusion from the perspective of issuing a passport, can be avoided by making the non-removal clause clear. Further, it is important to note that a restriction regarding the residence of the child does not limit the parents’ ability to travel abroad with the child. A restriction regarding the residence of the child is usually not sufficient to prevent the issuance of a passport to a child.
Frequently asked questions about issuance of passports to children in the context of separation and divorce.
1. What documents must accompany the passport application in the case of separation or divorce? All court orders, separation agreements or legal proceedings pertaining to custody or mobility of, or access to the child. In addition, in cases of divorce, the divorce order as well.
2. Are separation agreements acceptable? Yes.
3. What if the applicant parent cannot locate the other parent for a required signature? A court order stipulating that the custodial parent can apply for a passport without the participation of the other parent or a statutory declaration on the whereabouts of the other parent may be accepted depending on the situation.
4. What if the order contains a non-removal clause? If there is a non-removal clause, a passport cannot be issued unless the clause is removed by the court or an authorization to travel is obtained from the court. In cases where the court order stipulates that a child cannot be removed from a jurisdiction without the consent of the other parent, the passport can be issued if both parents consent to the issuance of the passport.
5. What if there is joint custody but the other parent refuses to consent to the passport application? The parent who wishes the issuance of the passport must obtain a court order to allow him or her to apply for a passport without the consent of the other parent.
6. What can a parent do if there is a fear of abduction? Parents who fear abduction should obtain a court order with a non-removal clause and advise Passport Canada. Passport Canada can add the name of the child to its System Lookout that will generate an alert if an application for a passport is made. Parents can also contact their local police. Parents may also ask the court to order the custodial parent to return the passport issued in the name of the child to Passport Canada. Further information can be obtained on the RCMP web page for the program “Our Missing Children.”
8. Do both parents have to sign the passport application in cases of joint custody? Yes, unless the order specifies otherwise.
9. If one parent has sole custody, does the other parent have to sign the passport application? Passport Canada states that both parents are requested to participate in obtaining passport services for their child and sign the application form. However, depending on the type of access, the participation of the other parent may not be required. For “reasonable access,” no signature is required. If access rights are set out, the other parent’s signature is required. However, if a required signature is missing, the passport can still be issued if other requirements are met. If the order or agreement sets out other instructions pertaining to consent, Passport Canada will follow the instructions in the order or agreement if the applying parent is the custodial parent.
10. What if the child has a valid passport but the parents separated after the passport was issued? After a passport is issued, parents are free to use it at any time. Passport Canada will not ask a parent to return a passport if the passport was issued properly, even if custody, access or mobility has been changed since the issuance of the passport.
Diana Andai is Legal Counsel, Department of Justice Canada, Family, Children and Youth Section
The Family Way, October 2012 - Newsletter of the National Family Law Section
Copyright © The Canadian Bar Association