Understanding Child Abduction and Retention: a Guide to Children's Law Reform Act Applications

Our

Work.

Our Work.

Multi-Jurisdictional Disputes

Hague Convention/ Children’s Law Reform Act Jurisdiction Disputes/ International Jurisdiction disputes

Hague Convention Applications

Canada is a ratifying member of the Convention on the Civil Aspects of International Child Abduction (“The Convention”). The Convention is designed to deal with an increasing international problem – abduction of children by a parent. The Convention’s intent is to return parties to the status quo prior to the child’s unlawful removal from her country of habitual residence so that any custody and access issues between the parties can be determined according to the law of that jurisdiction. The Convention is based on the presumption that, save in exceptional circumstances, the wrongful removal or retention of a child across international boundaries is not in the interests of the child.

The removal or retention of a child is considered “wrongful” where:

1. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually a resident immediately before the removal or retention; and
2. at the time of removal or retention those rights were actually exercised, either jointly or alone or would have been so exercised but for the removal or retention
  
  If the child has resided in the contracting state for less than a year from the date the unlawful removal or retention commenced, then a judicial or administrative authority shall order the return of the child forthwith unless, under Arts. 13(a) and (b):

1. the person, institution or other body 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
2. 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
  
  According to Article 13, the judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
  
  If the child has resided for more than a year in Ontario, then the child should also be ordered returned unless it is demonstrated that the child is now settled in its new environment.

Children’s Law Reform Act Applications

If your child’s country of habitual residence is not a signatory to the Convention or if the dispute is between two different provinces within Canada, the process and test is different, but an application or defence may still be brought under the Children’s Law Reform Act, some of the relevant sections being s.22, s. 23, s.25, s. 69 and s. 40 – s.43.

International Juridiction Disputes

If the jurisdiction dispute in your case relates to a divorce, property, or support, an application to the Court to assert or decline jurisdiction may be brought applying the Family Law Act, the Divorce Act, or the common law, where applicable.

If you are seeking to bring or defend a Jurisdiction application under the Hague Convention, the Children’s Law Reform Act, or are seeking to deal with other jurisdiction issues, contact farrah@bhdllp.com. These issues are threshold issues that generally must be determined at the outset of the litigation and thus it is important to act quickly.