INTERNATIONAL CHILD ABDUCTION
THE HAGUE CONVENTION
An international child abduction occurs when a parent, guardian or other person with lawful care of a child removes that child from Canada, or retains that child outside Canada, without either the legal authority or permission of a parent who has full or joint custody rights. When this occurs, specific steps must be taken in order to return the child home.
The Hague Convention is an international treaty governing child custody across international borders. Canada is a signatory of this treaty, and its provisions have been adopted into Ontario Law. The Hague Convention calls for the cooperation between countries to ensure that the child is immediately returned either from Canada or to Canada. The Hague Convention exists to protect children from being removed from the country where they ordinarily reside (their “habitual residence”). When a child has been wrongfully removed or retained, the Hague Convention assists with the prompt return of the child or children to their country of habitual residence.
A Hague Convention Application may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of the habitual residence, and only if the two countries are parties to the Hague Convention. The child must be promptly returned to their habitual residence unless the return will create a grave risk of harm to the child (or another limited exception is established).
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According to the child abduction law, to successfully obtain the return of a child through The Hague Convention, a parent must demonstrate that Canada is the child’s habitual residence, that the removal of the child was illegal and in violation of the parent’s custodial rights, and that the child is under the age of 16. A child’s habitual residence can be difficult to prove. Recent international case law and Ontario case law have provided a vast number of factors to be considered by the courts in a Hague Convention proceeding. These decisions have shaped and defined what the courts will look for in order under the child abduction law to determine the habitual residence of a child and whether or not a return order should be issued.
The Hague Convention recognizes that custody and visitation matters are properly decided by the court in the country of the child’s habitual residence. The international court will therefore illegally abducted from their habitual residence and should therefore be returned.
Therefore, you should be aware that ordering the return of your child is not determinative of custody or access issues. 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 any of the parents’ rights to custody of, or access to, his or her child. For more information on the child abduction law and to discover how an Ontario child abduction lawyer can assist you, contact JMS Law today.