Abduction of Children

In the context of custody of children, the term abduction refers to the removal by one parent of a child from her usual residence without the consent of the other parent. This may refer to the removal of a child to another country or simply the removal of a child to another residence in the same city.

For a discussion of issues arising out of the removal of a child from the matrimonial home to another location within the same city or county, see the chapter on Custody and Access.

When a child is taken from her home in one county to another county, an issue may arise as to which court has the authority to make orders regarding the child. The Family Law Rules state that a case regarding custody of a child or access to a child must be commenced in the municipality where the child ordinarily resides. Therefore before a court will make an order regarding a child, the court must be satisfied that the child ordinarily resided in the county or Regional Municipality where the court is located.

If you are filing an Application where a child has been abducted, it is important to indicate in the box entitled The Children on page 3 that the child is resident in the municipality from which he or she was removed. If you indicate that the child is resident in the municipality to which he or she was taken, and the child was taken to a different county or Regional Municipality, you may not be permitted to file the Application.

When a child is taken from her home in one province to live in another province, an issue may arise as to the province in which court proceedings must be. The Ontario Courts of Justice Act states that a court in Ontario only has authority to make orders for custody of or access to a child in certain circumstances, which are as follows:

1. the child is habitually resident in Ontario at the commencement of the application for the order; or

2. although the child is not habitually resident in Ontario, the court is satisfied that all of the following circumstances exist:
a. the child is physically present in Ontario at the commencement of the application for the order,
b. substantial evidence concerning the best interests of the child is available in Ontario,
c. no person has filed an application for custody of or access to the child outside of Ontario in a place where the child is habitually resident,
d. no order has been made in respect of custody of or access to the child by a court outside of Ontario,
e. the child has a real and substantial connection with Ontario, and
f. it is appropriate for the Ontario court to make an order.

The Courts of Justice Act defines habitually resident as follows:

1. The place where the child last resided in one of the following circumstances:
a. with both parents; or
b. where the parents are separated, with one parent
i. in accordance with the terms of a separation agreement;
ii. in accordance with the terms of a court order;
iii. with the consent, implied consent or acquiescence of the other parent; or
c. with a person other than a parent on a permanent basis for a significant period of time.

2. The removal of a child without the consent of the other parent does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing proceedings by the other parent.

The Courts of Justice Act makes special provision for an Ontario court to have authority over a child where that child is at risk. A court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

1. the child is physically present in Ontario; and
2. the court is satisfied that the child would suffer serious harm if,
a. the child remains in the custody of the person legally entitled to custody of the child,
b. the child is returned to the custody of the person legally entitled to custody of the child, or
c. the child is removed from Ontario.

The Hague Convention on the Abduction of Children

When a child is unlawfully removed by a parent to another country special considerations may come into play. In particular, there is a special set of procedures provided by what is known as the Hague Convention on the Abduction of Children. The Hague Convention is an agreement which has been entered into by certain countries around the world to deal with situations where children are removed from their usual country of residence by a parent. The Convention does not apply where a child has been removed from one province or territory in Canada to another. It only applies where a child is taken out of the country.

Canada and the United States apply the Convention, as do most countries in North America, South America and Europe. See below for a list of countries that are signatories to the Convention

What is different about the Hague Convention which sets it apart from other legislation dealing with custody of children is that for the most part the Hague Convention does not deal with the actual issues of custody of a child or access to a child. It simply provides a mechanism to effect the return of a child to the country where the child normally resided prior to being removed.

Not all parents have the right to apply for an order for the return of a child pursuant to the Hague Convention. Whether the convention applies depends on what rights of custody or access the applying parent was entitled to in the particular situation. Generally speaking, unless a parent’s rights have been limited by a court order or agreement, that parent will be entitled to take advantage of the procedures in the Convention.

The Convention essentially states that the court in the destination country should order that the child be returned to the originating country unless certain very specific circumstances exist.

Under the Convention the court in the destination country is not required to order that the child be returned if

1. the child would face a serious risk of physical or psychological harm or would be placed in an intolerable situation if he was returned to the originating country;
2. the child would be subject to violation of basic human rights and fundamental freedoms if he were returned to the originating country; or
3. the applying parent has acquiesced or delayed seeking the return of the child to the extent that the child has become settled in the destination country. These tests are applied rather strictly and there must be clear evidence that the situation falls within one of the exceptions in order for the court to refuse to order the return of the child.

Prior to commencing an application under the Hague Convention it is a good idea to commence a regular proceeding in the court for the return of the child pursuant to the legislation in force the applicable jurisdiction in the country from which the child is taken. Once such an order is obtained, that order should be served on the abducting parent immediately. It should also be forwarded to the authorities for the destination country. This type of order is what we refer to as a “chasing order”.

There are several benefits to obtaining a chasing order prior to or at the same time as an application under the Convention. First of all, by obtaining such an order a parent will establish that the court in the originating country is assuming jurisdiction over the child, meaning that court has found that there is sufficient evidence to indicate that the child’s ordinary place of residence is the jurisdiction where that court is located. The general rule is that a court only has jurisdiction or authority to make orders pertaining to children if the children normally reside in the place where the court is located. Secondly, the courts in the destination country may recognize and enforce the chasing order and require the parent to return the child without an order under the Hague convention. Thirdly, when the order is obtained and served on the abducting parent and the parent does not return the child this will establish for the court in the destination country that the abducting parent is not prepared to comply with the order of the originating country and thus an order under the Hague Convention is required. Also the refusal by the destination country to enforce the order of the court of the originating country again establishes the need for the order under the Hague convention. Fourth, immediately obtaining a chasing order will greatly assist in establishing for the purposes of the Hague Convention that the applying parent has not acquiesced in the removal of the child.

What makes the procedure under the Convention more effective is that the court hearing the application under the Convention will not enter into an in-depth investigation of what is in the child’s best interest in terms of where he should live or which parent with which he should live. The sole function of the court in deciding the application under the Hague Convention is to determine whether the Convention applies and whether the child should be returned. A hearing into what is best for the child can easily take months and all the while a new status quo is being established which can affect the outcome of the determination of what is in the child’s best interest.

It is important to communicate with the authorities in the destination country as soon as possible in order to clarify what is required for that country not only to make an order for the return of the child but also for that country to enforce the order. Usually the best place to start is with the embassy or Consulate in the destination country. Abductions are not uncommon and there will be officials who can assist in the process, including liaising with police and locating the parent and child.

You are probably going to need a lawyer in the other country. If the abducting parent opposes the application under the Convention there will be a court hearing in the destination country and you will need a lawyer who is familiar with proceedings in that country as well as under the convention. Such lawyers are rare so it may take a while to find someone who is qualified. The lawyers at gclawyers.com have conducted numerous proceedings under the Hague convention, in situations where Canada was the country where the child originated and the country to which the child was taken.

Signatory Countries to the Hague Convention

Albania
Argentina
Australia
Austria
Bella Russ
Belgium
Bosnia and Herzegovina
Brazil
Bulgaria
Canada
Chile
China
Costa Rica
Croatia
Cyprus
Czech Republic
Denmark
Ecuador
Estonia
Finland
France
Georgia
Germany
Great Britain
Greece
Hungary
Iceland
Ireland
Israel
Italy
Latvia
Lithuania
Luxembourg
Macedonia
Malta
Mauritius
Mexico
Monaco
Montenegro
Morocco
Netherlands
New Zealand
Norway
Panama
Paraguay
Peru
Poland
Portugal
Romania
Russia
Serbia
Slovakia
Slovenia
South Africa
Spain
Sri Lanka
Sweden
Switzerland

Turkey
Ukraine
United States
Uruguay
Venezuela