YLaw - Family Law Firm Vancouver & Surrey, BC Lawyers. Divorce, Children & Common Law. Asset & Debt Division, Spousal & Child Support. Settlements, Appeals & Agreements. Estate, Corporate & Immigration Litigation. | HQ: 410-1122 Mainland St, Vancouver, BC V6B 5L1

Vancouver Farsi Speaking Lawyer Explains Travel to Iran with Children After Separation

July 7, 2019     Child Custody

In this article, Vancouver Farsi Speaking lawyer Leena Yousefi explains the complicated issue of traveling to Iran with children after a couple separates in Canada. This is a subject which is difficult and sometimes painful to cover. Many Iranian parents simply want their children to travel to Iran and get to know their home country. Since it is difficult for relatives in Iran to get Visas to come to Canada, it makes more sense for children or parents to travel to Iran from Canada rather than the other way around. Children also deserve to travel and see different places in the world. It is not good to force them to be stuck in Vancouver until their parents finalize their divorce which can take many years.

On the other hand, the risk of traveling to Iran with the children and not returning to Canada is a major risk. Some parents in the past have said they only want to travel but have ended up abducting children to their home countries. If a parent abducts a child to Iran, Canada cannot force that parent or child back because Canadian orders are not enforceable in Iran.

Travel to Iran with Children is Generally Safe But There Are Risks

Generally the risk of a parent taking the child to Iran and not returning is extremely low. Most parents simply want to take a vacation and prefer to live in Canada over Iran. But even that small risk may make a judge want to err on the side of caution and not allow it.

In case of a disagreement on travel to Iran with children, the judge is stuck with the very difficult task of deciding whether to allow travel or not given the risks. In some cases, the judges allow the travel and in some cases they don’t. Each case is fact specific and needs to be presented perfectly in order for the right decision to be made.

If you have separated from your spouse and want to travel to Iran with children, or if you want to prevent the other parent from traveling, it is vital that you speak with a Vancouver Persian Lawyer who is familiar with these situations to obtain your rights and obligations. Failure to do so may have extreme consequences which may cause irreparable harm to your relationship with your children.

Below I will explain the risks of traveling to Iran for fathers, mothers and children. I will also explain the legal test and factors that judge will consider in whether to allow children to travel to Iran post separation.

  1. This is part 3 of our Persian Divorce series and will be talking about travel or relocation to Iran with children, and general custody arrangements. 
  2. Part 1 of our series talks about whether you need both an Iranian and Canadian divorce, and how to divide assets.
  3. Part 2 of our series talks about Mehrieh or Dowry and how to claim it in Canada.

Can I Travel to Iran with Children After Separation?

Yes you may. But you will likely get stopped at the Canadian Border by an officer. The officer will ask you to show the parent’s permission for the child to be traveling with you to Iran. If you do not have a notarized travel authorization letter from the other parent, the border officer may not allow your child to leave the country.

Permission to travel to Iran after separation is generally obtained by agreement between the parents. In case of a disagreement, the traveling parent may apply to the BC Supreme or Provincial Courts and ask a judge to allow the travel.

To get a sense of your chances of being able to travel with your child to Iran, you need to first understand the difference between the custody laws of the two countries. You then need to know the risks of one parent taking the children to Iran, even for a short amount of time:

What are the Risks of Traveling with Children to Iran After Separation?

Although I am not lawyer licensed to practice in Iran, I have dealt with many Iranian divorces in Canada and have been informed of the laws of Iran as they relate to custody (please do not consider the below points as legal advice as I am not licensed in Iran. This is just relaying information I have). Here are some of those laws that can create major risks for children who are taken to Iran by a parent:

  • A not-yet-divorced mother and children can be prevented from exiting Iran by the father. So as a mother you may speak to the father and tell him you want to travel to Iran with the children for 2 weeks. He may agree to this. Once you enter Iran, he may prevent you and the children from exiting Iran. He can then come and live in Iran himself and use the Iranian laws to gain custody of the children. In this situation, you may never be able to leave Iran and may lose the custody rights you have in Canada.

 

  • In Iran, Custody of Children is often Given to Men, not Women. Generally, women will be given primary care of their children until children reach a certain age which is usually the age of 7. After the child reaches a certain age, custody is given to the man. So if you are a woman who has custody of a 9 year old boy in Canada and you travel to Iran with him, the father may disallow you from exiting Iran. Then he could come to Iran and ask the Iranian courts to give custody of the boy to him permanently. Therefore, you may lose all your parental rights that you had in Canada, and may be at the mercy of the father when/if you want to visit or be a mother to your son.

 

  • Iran is not a signatory to the Hague Convention. The Hague Convention was established in 1980. Over 100 states are parties to this convention and Iran is not a party. This convention is an agreement between the member/party states to return abducted children to their home countries immediately. For example, if a parent abducts a child from Canada to the US, that child is often immediately returned by the US police to Canada and given to the non-abducting parent. Judges in Canada have a much easier time allowing travel to Hague countries because there is a mechanism by which the children can be returned if abducted. Iran is not a signatory to Hague. This means that if a parent abducts a child to Iran, Canada and the Canadian courts do not have any mechanisms to ensure the child is returned. It is for this reason that permission to travel to Iran with children is not lightly given by the Canadian courts. The risk of a parent abducting and not returning a child is simply too great in most cases.

What Does the Judge Look At in Deciding Whether to Allow Travel to Iran with the Children?

In deciding whether to allow travel to Iran or not, the judge must look at the conduct and evidence of both parents and see if there is a risk the child may not be returned by the traveling parent. The legal test a judge needs to apply was summarized in the case of S.R. vs. B.E:

Essentially, Mr. Justice Ehrcke’s words support the respondent’s position that there should be an evidentiary basis to establish concern that a parent may not return the child to British Columbia, as opposed to speculation on the part of the opposing parent that the child may not be returned. I fully agree with the conclusion of Mr. Justice Ehrcke.

So the mere fear that a child may not be returned to Canada is not enough. The parent opposing the travel must show through evidence that the traveling parent is a flight risk and may abduct the child if allowed to travel.But it seems like the standard for proving the risk for travel to countries such as Iran is very, very low:

Case Where Judge Did Not Allow Travel with Children to Iran

In S.R. vs. B.E: 

  1. The parties had been separated and divorced for over 4 years;
  2. They had 50/50 care of the child;
  3. Neither parent had abducted the child or had done anything to make the other suspicious;
  4. The mother wanted to take the child for a trip to Iran for a couple of week to visit her family and grandparents who were too sick to travel to Canada;
  5. She had not done anything to harm the child and had acted in the best interests of the child;
  6. She provided evidence regarding the safety of the child and had volunteered to allow contact between the child and the father while the child was traveling to Iran.

The judge in this case did not allow the travel. He stated that the mother had done or said questionable things such as:

  1. The mother stating to the father that she wasn’t happy living in Canada;
  2. The mother did not have family or friends in Canada;
  3. The mother had more assets in Iran than in Canada;
  4. The mother did not work in Canada;
  5. The mother once wrote a note stating she couldn’t take the child to Iran if she was separated or divorced in Canada;
  6. Iran is not a signatory to the Hague Convention, etc.

The above factors were listed to show that the mother was somehow a flight risk and may not return the child to Canada. I disagree with the judge’s reasoning. If everyone who didn’t work in Canada or didn’t have friends here was a flight risk, then many children would be prevented from having fun and genuine summer vacations. Clearly if this same mother was not planning on going to Iran but instead, to the US, the judge may have allowed the travel. I think a major factor in not allowing the child to travel was the fact than Iran is not a Hague signatory. But being a member of the Hague is not supposed to play a major factor in the judge’s analysis. This is because the legal test to apply here should be focused on the conduct of the parent and whether it raises suspicions, not the situation of the country. My two cents.

Court Case Where Judge Did Allow Travel with Children to Iran

Other cases have allowed travel to Iran where the traveling parent did not raise suspicions and acted in the best interests of the child. One of these cases can be found here.

As you can see above, permission to travel to Iran post-separation is extremely complicated. If you are intending on traveling to Iran to post separation, it is vital that you speak with an experienced lawyer who is familiar with Iranian divorce and can guide you to the right direction.

 

Tell Us About Your Case

YLaw represents clients in family law, immigration law, estate litigation and civil litigation.
Consult with our experienced team at

Tell us About Your Case