The following explains the process you should use if your child is abducted by your former partner/spouse and brought to a country outside of Canada. It outlines the processes that may be used if the foreign country in question is a signatory to the Hague Convention, as well as if it is not a signatory, resulting in the inapplicability of the convention.
For more information and insight, please call our Ontario parental child abduction lawyers at (905) 581-7222. We are here to help you.
International Child Abduction
If you fear that your child has been abducted to another country by your former partner/spouse then your first step should be tocontact the Ministry of the Attorney General as well as the federal Department of Justicethat function as the Central Authorities for the province of Ontario and Canada respectively.
Central Authorities are responsible for the administration of the Hague Convention. They can provide you with information on the countries that are signatories (i.e., participating countries), as well as advise you on how to proceed with an application. The Central Authorities will try to locate the whereabouts of your child and attempt to secure his or her voluntary safe return. Should the child’s voluntary return be impossible, the Central Authority will then help with securing legal assistance in the foreign country, including the help of legal counsel and advisors.
If your child has been abducted to a non-signatory country, the Hague Convention will not apply, and the Central Authority will not have the ability to help secure the safe return of your child.
As of June 2010, the Hague Convention applies between Canada and the following signatories:
- Bosnia and Herzegovina
- Burkina Faso
- China, People’s Republic of
- Costa Rica
- Czech Republic
- El Salvador
- Moldova, Republic of
- New Zealand
- Saint Kitts and Nevis
- South Africa
- Sri Lanka
- Trinidad and Tobago
- United Kingdom of Great Britain and Northern Ireland
- United States of America
After contacting the Central Authority and establishing the Hague Convention applies, your next step will be to submit a copy of the convention-approved application form. The Central Authority will provide you with the appropriate application form.
Once you have filled out the application form and provided all the necessary information, Article 9 of the Hague Convention states that the Central Authority shall, without delay, transmit the application to the Central Authority of the foreign state to which the child has been brought (wrongfully).
It then becomes incumbent on the foreign Central Authority to take all appropriate measures in order to obtain the voluntary return of the child. If the voluntary return of your child proves to be an impossibility, legal proceedings may be initiated in the foreign state. Article 25 of the Hague Convention states that an individual bringing an application in a foreign jurisdiction shall be entitled to legal aid and advice during the proceedings.
Under Article 11 the judicial or administrative authority in the foreign State has a duty to act expeditiously to secure the return of your child if the requirements are met and there aren’t any defenses available to the abducting parent. Moreover, and pursuant to this Article, if the judicial or administrative authority does not make their decision within a six-week period, the Central Authority of the requesting State has the right to request and receive reasons for the delay.
It may be possible to appeal the decision arrived at to higher courts within the foreign jurisdiction in accordance with the judicial process. The effect of this may be increased delays and a longer period of separation between the parent and the abducted child. Also, if the abducting parent moves with the child from one foreign jurisdiction to another, after the application has been received, the Central Authority is endowed with the ability to cease the proceedings or dismiss the application and transfer it to the foreign country newly implicated in the situation.
The Civil System: When the Hague Convention Does Not Apply
When the country to which your child has been abducted is not one of those with which Canada has an agreement (see above), the Hague Convention will not apply, nor will the Central Authorities be of any assistance. As a result you must take matters into your own hands and use other methods in order to ensure the safe and secure return of your child.
The first necessary step is to obtain a custody order from a Canadian court if you do not already have one in place. Although custody orders granted within Canada are not binding in any foreign jurisdiction, you may benefit from laws in place there that allow for the recognition and enforcement of foreign orders. Even if no such law exists, the custody order granted by a Canadian court may provide strong and persuasive evidence for your case.
Once you have obtained your custody order in Canada you should contact a lawyer who has some experience or knowledge in cases of international child abduction. Since this is a situation where the Hague Convention will not apply, your recourse will be to initiate legal proceedings in the foreign jurisdiction to which your child has been brought.
The lawyer retained in Canada may be able to advise you on what steps to take and what documentation to compile in order to effectively engage in the proceedings, however, you should probably seek out and retain a lawyer who practices in the foreign jurisdiction. In order to do so you should contact Consular Services in both Ottawa as well as the Canadian office in the foreign country. These offices can provide you with information on the legal system in place, the customs and practices of the country, the parental rights generally afforded, and the names of lawyers who speak French and/or English and who have experience in this area of law.
The Canadian consular officials will also be helpful in later stages of the process as they can maintain contact with the lawyer in the foreign jurisdiction in order to obtain status reports and ensure that your rights are respected. This is necessary since it probably won’t be feasible (financially) for you to fully participate in the preparation or the trial, however, you may be required to be present at some point during the proceedings.
You should always keep in mind that the wrongful removal of your child from Ontario or any other Canadian province contrary to a custody order will not be determinative of the issue in the foreign jurisdiction.
There are numerous factors that may give the abducting parent an advantage over you, such as:
- He or she has brought the child to his or her country of origin,
- There are certain beliefs or customs, premised on religion or gender, that may favour the abducting parent as the custodial parent.
Therefore, should a court make a decision contrary to the custody order obtained in Canada, you should make every effort to secure access rights and to understand the limitations that may be placed on the exercise of your access.
The Criminal System
Abduction is a federal offence in Canada. This applies in cases involving the abduction of a child under 14 years of age, the taking of a child in violation of a custody or access order, and the taking of a child under 14 years of age with the intent to deprive the custodial parent/guardian of possession of the child.
A parent whose child has been abducted and brought to another province or country contrary to the preceding provisions must contact the police immediately. The police may either issue a warrant for the arrest of the abducting parent or, in cases that fall under s. 283, the Attorney-General may issue the warrant. A warrant will allow the police to locate and recover the child regardless of whether he or she has been transferred to another province or country. Arrest warrants generally facilitate cooperation among police forces, both nationally and internationally.
Experienced Child Abduction Counsel in Mississauga, Vaughan, Oakville & Markham
If your child has been taken by your former spouse or partner, you have rights. Feldstein Family Law Group P.C. is prepared to assert these to the utmost extent. We serve all of Ontario, including Markham, Mississauga, Vaughan, and Oakville and have been doing so since 1994. Now is the time to put our experience and skill to work for you.
Call (905) 581-7222 today for a confidential consultation with an Ontario child abduction lawyer.