When a parent takes a child out of the country without the custodial parent’s knowledge or consent, in violation of an existing court order or divorce or separation agreement, there are specific steps that need to be taken to return the child home safe. These are complex matters, particularly when the parent has left Canada with the child. You need an Ontario family lawyer who understands precisely how international child abduction laws will influence your case, based on your custody order or agreement, the country the child was taken to, and other unique factors.
Feldstein Family Law Group P.C. is experienced in international parental child abduction cases. When you call our offices for a free consultation, we can explain your rights, the steps you need to take, and your options. You can rely upon our knowledge of these challenging matters.
To learn more, call (905) 581-7222. We are here to help you get your child back.
The Hague Convention
The primary point of reference in cases of international child abduction, where the child in question is under the age of 16 years, is the Hague Convention on the Civil Aspects of International Child Abduction (commonly referred to as the Hague Convention). The Hague Convention facilitates the safe return of abducted children and encourages cooperation between countries that are signatories.
This convention applies throughout Canada and in approximately 80 other countries and regulates child abduction between countries that are signatories. It does not apply, nor may it be used for cases of child abduction between Canadian provinces.
Contacting the Central Authorities
The Hague Convention calls for the creation of “Central Authorities”. In Canada, these are special offices in each of the provincial and territorial departments of the Ministry of the Attorney General that oversee and manage cases of international child abduction. The federal Department of Justice is also a Central Authority and provides assistance in addition to the provinces and territories.
If your child has been abducted by a former spouse/partner and brought to a country to which the Hague Convention applies, you should contact the Central Authority in your province. The convention imposes a quasi-duty on the Central Authorities to use every method available to them to ensure the expeditious return of the abducted child.
You may also contact and alert the following agencies and organizations to ensure that the utmost is being done to secure the return of your child:
- The police (both local and RCMP).
- The Canadian government’s “Our Missing Children Program”. Here, the RCMP, the Canada Border Services Agency, Foreign Affairs and International Trade Canada, and the Department of Justice work together to not only locate but to return missing children to their parents.
- The media (optional). You may choose to involve the media so your child’s picture is circulated to a larger audience, which may be crucial in pinpointing his or her whereabouts. However, the increased attention drawn to your case may cause the parental abductor to retreat and go into hiding, making it even more difficult to locate him or her.
- Private search agencies (optional). The involvement of private agencies may not be necessary as there is an abundance of public agencies at your disposal who will try incredibly hard to locate and return your child, free of charge.
The agencies and institutions noted above will work rigorously to honor both the Hague Convention as well as the custody or access order that is in place. If there is no order in place, it may be possible to obtain one “after the fact”. Our Ontario child abduction lawyers can help you determine what your options are and whether or not it would be possible to file an application with the court. If the order is granted, notwithstanding the fact that it is unenforceable in the foreign jurisdiction, it will still provide very strong evidence supporting your claim that the child was wrongfully removed and retained. Or, you may be able to affect the return of your child by simply applying the convention despite the fact that there is no order in place.
Requirements for Application of the Hague Convention
The Hague Convention will apply in situations where the following requirements are met:
- The child was taken in violation of custody or access rights under the child’s resident state.
- At the time the child was taken, these rights were actually being exercised, or would have been if the child hadn’t been removed or retained.
- The child was a habitual resident of the contracting state immediately prior to his or her removal or retention.
- The child is under 16 years of age.
Note that the child must be habitually resident in the state from which he or she was removed in order for said removal to be considered wrongful and the Hague Convention to apply. It is up to the courts in the foreign jurisdiction to determine whether or not this requirement is met and order the safe return of the child in an expeditious manner. However, difficulties arise from the fact that the convention does not define the term “habitually resident.” Recourse may therefore be made to provincial legislation, such as the Children’s Law Reform Act, R.S.O 1990, c. 12 under s. 46, which makes it binding law in Ontario.
Article 12 seems to impose a one-year limitation period on parents bringing a claim for wrongful removal and retention in a foreign jurisdiction. However, it also states that notwithstanding the expiration of the one-year period, the courts will still order the return of the child unless it is shown that the child has comfortably settled in his or her new environment.
Potential Defenses to International Child Abduction
You should be aware of the fact that the courts in the foreign jurisdiction are not bound by the Hague Convention to order the return of the child.
The abducting parent is afforded a defense if any of the following circumstances exist:
- The custodial party was not actually exercising custody or access rights at the time the child was taken from the country;
- The custodial party agreed to the removal or retention of the child, either prior to or after their taking; or
- If the child were returned to the custodial party, he or she would be at grave risk of physical or psychological harm.
Important Notes & Information
It is important to note that all of the provisions and procedures discussed in the preceding paragraphs apply equally to an access parent.
You should also be aware of the fact that ordering the return of your child is not determinative of custody. Therefore, if a custody order or agreement exists, your former partner/spouse may still bring an application to vary that order. Or, if there is no custody order or agreement, your former partner/spouse may bring an application for a determination of custody.
A judgment ordering the return of your child to the country in which he or she was habitually resident is simply a rectification of the wrongful removal or retention. It does not terminate your former partner/spouse’s rights to custody of or access to his or her child.
For more information and to discover how an Ontario child abduction lawyer can help you, call Feldstein Family Law Group P.C. at (905) 581-7222.