International Child Abduction

The primary point of reference in cases of international child abduction, where the child in question is under the age of sixteen years, is the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter referred to as the “Hague Convention”). The Hague Convention facilitates the safe return of abducted children and encourages cooperation between countries that are signatories. The two main objectives of the Hague Convention are:

• to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
• to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

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.

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 then 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 return missing children to their parents
• the media (optional). You may choose to involve the media so that 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 then it may be possible to obtain one “after the fact”. You should contact a lawyer to 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 then 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 effect 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 wrongful removal or retention of a child is in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention
• at the time of the removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention
• the child in question was habitually resident in the contracting state immediately before any beach of custody or access rights.
• the child is under the age of 16 years.

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 therefore recourse may be made to provincial legislation. Since this convention is incorporated into the Children’s Law Reform Act, R.S.O. 1990, c. 12 under s. 46 which makes it binding law in Ontario, the courts may look to and make use of the s. 22(2) definition:

Habitual Residence: A child is habitually resident in the place where he or she resided,

1. with both parents;
2. where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
3. with a person other than a parent on a permanent basis for a significant period of time,
   whichever last occurred.

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.

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 person having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention, or
  • A 2001 decision from the Ontario Court of Appeal interpreted Article 13 subsection (a) of the Hague Convention and established the test to be applied with regards to acquiescence. The court stated that acquiescence is “subjective consent determined by words and conduct, including silence, which establishes the acceptance of, or acquiescence in, a child’s removal or retention.”
• there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
  • In 1994 the Supreme Court of Canada clarified that the risk required under Article 13 subsection (b) “has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. […] not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That […] is the effect of the words ‘or otherwise place the child in an intolerable situation’.” Therefore, violence in the home would qualify under this subsection.

Lastly, 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 then your former partner/spouse may still bring an application to vary that order. Or, if there is no custody order or agreement then 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.