Parental child abduction is one of the most challenging and emotional areas of family law. It is a very complicated issue as it often involves issues of jurisdiction, or which court has the authority to enforce a particular custody and access order. You need a lawyer who can protect your rights and help you get your child back. At Feldstein Family Law Group P.C., our experience spans both national and international cases of parental child abduction, most notably our involvement in ensuring the successful and safe return of a child who was wrongfully removed and retained in a middle eastern country that was not a signatory to the Hague convention on child abduction.
Firstly, if a child is abducted locally, the custodial parent should contact local law enforcement. A parent should always keep the order, the separation agreement, or any written document which confirms the custody and access arrangement easily accessible. A child can be abducted locally; however, there are also cases of international abduction where the child is taken to another country. International child abduction is a much more complicated issue.
If your child was wrongfully taken from you, do not despair. Our Ontario child abduction lawyers know what is at stake and understand precisely how to take the necessary steps to assist you. We will work diligently to ensure your child’s safe and swift return.
Do not delay – call (905) 581-7222 for more information on our parental child abduction services.
If the child is abducted locally, the matter may be resolved through the civil courts. The particular court which will decide the issue will be determined by a lawyer using their legal skills and knowledge to determine where the child is habitually resident. According to the Children’s Law Reform Act (CLRA), which applies to Ontario, a habitual residence may be defined as the place where a child resided with both parents, with one parent in accordance with a separation agreement, with one parent in accordance with implied consent or a court order, or with a person other than a parent for a significant time period on a permanent basis.
The court where the child is deemed to be habitually resident has the capacity to protect the child, making decisions regarding the child’s wellbeing. Criminal charges may also be laid in cases of local abduction. Criminal charges may be useful as at times they may result in a timely apprehension of the child because a warrant may be issued.
International Abduction & The Hague Convention
The governing statute relating to international child abduction is the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) which has been incorporated in the Ontario courts into the CLRA. This statute deals with the wrongful removal of a child from one jurisdiction to another country. However, in order for this statute to apply to the country to which the child was taken, that country must be a signatory of the Hague Convention. Simply put, this means that the country must have signed the Hague Convention, and by signing and ratifying same, they have agreed to abide by statute. The statute has been signed by most of Europe, Canada, and the United States.
The Hague Convention determines which court has jurisdiction to determine custody of the child by determining the court of the country where the child is habitually resident. In order for the statute to apply, the child must be under the age of 16. One aspect of this statute is that it gives authority to have the abducting parent extradited back to Canada. However, one reason why international abduction cases are so complex is that there is no definition in the Hague Convention of “habitual residence”, therefore, the practice is to use a broad approach, looking at the facts of each case on a case by case basis in order to come up with an equitable and fair decision.
Abduction Within Canada
If your child has been wrongfully abducted by your former spouse/partner (or you fear that your child will be abducted) and taken to a province outside of Ontario, Feldstein Family Law Group P.C. can help you take the necessary steps to seek their swift return.
If you and your spouse are in the process of getting a divorce, or have already been granted one, then the applicable Act is the Divorce Act, R.S.C. 1985, c. 3. If you have obtained a custody order, pursuant to s. 20(2)-(3) it has legal effect throughout Canada and, once registered, is enforceable in any province. Therefore, if the order specifies that the child is not to be removed from the jurisdiction then enforcement of the order will typically entail the return of your child. You should always endeavor to contact the police who may provide assistance to you, as well as a family lawyer who can educate and advise you with regards to the relevant laws and the procedure to be followed.
If you do not have a custody order in place and rather have reached an informal agreement that is unenforceable by the court, you should apply for an order for custody pursuant to s. 16(1) of the Act. More specifically, you should request that the court award you sole custody and include in the order a condition stipulating that the child is not to be removed from the jurisdiction without your express consent. Once the order is granted by the court, it has legal effect throughout Canada and becomes enforceable in all provinces in which it is registered. Therefore the next step, to effect the return of your child, would be to register the order in the province to which he or she has been taken.
If, on the other hand, you are an access parent, s. 16(7) aims to protect your rights and curb the potential abduction of your child by the custodial parent. According to this section, the court may issue an order that requires a custodial parent to notify an access parent of any intended change of residence at least 30 days prior to the intended move.
The Children’s Law Reform Act, R.S.O. 1990, c. C.12 regulates situations where the parents of the children are not divorced nor are they contemplating a divorce. They may be either a common law or legally married couple wishing to separate only, or they may solely be the biological parents of the children. Regardless of their situation, s. 20(1) of this Act grants them equal entitlement to custody of the child. Therefore, a unilateral decision, on the part of a parent, to abduct his or her child to another province or territory, contrary to an Ontario court order, is not allowed.
A custodial parent with reasonable and probable grounds for believing that his or her child is being unlawfully withheld may bring an application to court under s. 36(1) for the apprehension and return of the child. If the court is satisfied of such, the custodial parent, a third party, or the police may locate and return the child. The aforementioned requirements for apprehension by the police, i.e. reasonable and probable grounds, are strictly adhered to by the court.
Generally, if you have a mere suspicion that your child will be abducted or unlawfully retained, the courts will most likely resist making an order to direct the police to locate and apprehend him or her. What is most often required is convincing and credible evidence, such as plane tickets in the name of your spouse and your child of which you had no knowledge, or even the purchase of a residence in another province or country under the name of your spouse. The reason for this is due to the courts’ reluctance to implement police enforcement as the idea of frequent location and apprehension of children, in such a traumatizing manner, is unpalatable unless absolutely necessary.
To ensure the enforcement of your order, you should file it with the court of the province to which your child has been abducted. If the provincial laws are similar to those of Ontario then they should contain provisions recognizing the extra-provincial order and allowing for the enforcement of it. Moreover, retaining a family lawyer to help you throughout the process of ensuring the safe and secure return of your child would be in your best interests. A family lawyer would serve the purpose of educating and advising you on the law as well as ensuring that all your documents/affairs are in order.
If no order has been made stipulating the custodial arrangements for your child, you should submit an application for sole custody with the court pursuant to s. 21 of the Act. Similarly to an order made under the Divorce Act you should request that conditions be imposed on the order such as that the child may not be removed from the jurisdiction in which he or she resides without your express consent. Then, simultaneous to this application, you should make an application under s. 36(1) for the court to order the return of your child.
For more information and a review of your individual situation, call (905) 581-7222. Our Ontario family lawyers are here to help you.
We serve clients in Markham, Mississauga, Vaughan, Oakville, and the surrounding areas in domestic and international child abduction matters.