International Abduction & the Hague Convention
Parental child abduction is the removal or retention of a child contrary to an access or custody provision in a court order or agreement. Child abduction is usually triggered during the process of separation and divorce negotiation when parents are in dispute over matters of custody and access. If the abduction is domestic, it would be easy, all you have to do is to contact the police in assisting you to have the abducted child to be returned to you. The real question comes when the child is removed from Canadian soil, and that’s where the Hague Convention comes into play.
The Hague Convention
Canada is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, a multi-jurisdictional agreement addressing the areas of custody, support, service of documents and international child abductions. There are currently more than 80 signatory countries including the United States and most of the countries in Europe, each of which is committed to returning wrongfully removed children to their habitual residence, whatever the country may be. However, do note that China, most parts of Africa, and the Middle East are not signatory countries unfortunately.
Under the Convention, parents have one year following the date of the wrongful removal (removal of the Child from his/ her habitual residence unilaterally without consent) or wrongful retention (wrongfully extended the duration of a travel oversea unilaterally without consent) to apply for their child’s return, and to have the Convention’s return mechanism applied. After the one-year period, a parent may still apply for the return of the child; however, the abducting parent has the opportunity to prove that the child’s habitual residence has changed and that the child has become settled in the new environment.
If a child has been abducted to a non-signatory jurisdiction, the Convention does not apply. Unfortunately, if that’s the case, it difficult to have the child return back to Canada. Parents instead must work with the RCMP and Consular Services, or initiate a case where the child has been abducted to.
Habitual Residence of the Child
The habitual residence of the child determines which court has jurisdiction over the custody matter and the rules of that province, state or country will apply, which may or may not be compatible with Canadian law. Habitual residence is where the child is or has been living, including a “settled intention” to live there.
In Ontario, the court can exercise its jurisdiction if the child is a habitual resident of the province at the start the application. If the child isn’t, the court will only hear the case if: (1) the child must be physically present in Ontario; (2) it must be determined that the hearing is in the best interest of the child; and (3) that there are no other or pending child custody court proceedings in another jurisdiction and that there is no other child custody order in place. The most important aspect is proving a real and substantial connection with Ontario.
Returning Abducted Child Back to Canada
You can request children to be returned back to Canada via Hague convention. If child is 16 or below, and is wrongfully abducted, there’s a strong preference in relocating the children back to Canada. The wrongful removal of a child is the act of removal of the Child from his/ her habitual residence unilaterally without consent, while wrongful retention is the act of wrongfully extended the duration of a travel oversea unilaterally without consent.
There is no law that stated that habitual residence of a child cannot be changed unilateral without the consent of the other parent. The Court will only consider whether the original relocation was consented to, and that whether the child has a real and substantial connection with the new place of residence (e.g. Where the child goes to school? How integrated the child is into the local community?)? It’s extremely dangerous to permit child to travel outside of Ontario as it could result in a change of the child’s habitual residence if the amount of stay is longer than a month and especially over a year. This is especially so the child is traveling to a country not bounded by the Hague convention.
If a child voiced his/ her concern regarding the relocation, and the child is at least 12 years old or above, the Court will take such opinion seriously in reaching decision, especially if the child raised substantial objection in the relocation. court could refuse returning kid to habitual residence. But it has to be a substantial objection.
Under Hague convention the rights of custody means making decision about kids’ Habitual residence. It is very different than Canadian law’s conception on custody. In most country the default presumption is joint custody after separation, until proven otherwise by a separation agreement or other documents. The Right of custody under Hague is determined by the country that the child has been abducted to, NOT the country where the child was abducted from.
Exception the Rule
There are some exceptions. One of the most significant exception of the Rule against abduction is Article 13(b) of the Hague Convention. Article 13(b) is crafted as an exception permitting international abduction. The Hague Convention permits a parent to remove a child from it’s existence habitual residence if he/ she can establish that the child will suffer physical or psychological harm or otherwise be placed in an intolerable situation. It's a high threshold to establish application of "grave risk" and "serious harm". For start, you are required to show evidence that you have used reasonable effort to contact the police or other enforcement authorities where the habitual residence of the child is, and that the police or other enforcement agencies refused to help.
International Abduction & the Hague Convention cases are very technical and highly complicated, you are well advised to contact a lawyer for assistance.
HTW Law can help. Call us now at 647-849-6582 or send us a message if you have some legal questions / inquiries or want to schedule an appointment with HTW Law.