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Child abductions to other countries don’t often come up in the average family law practice, but when they do, moving quickly to return the child to their home is imperative.
Child abduction is a criminal offence in Canada, but there can be complications if the child is taken to another country or brought here from another country that has a different legal system, law enforcement agencies and practices.
As in most cases, negotiation is the preferred method of resolving such disputes, but ultimately when a child is taken outside of their country of residence — usually by a parent or guardian — that parent or guardian is in breach of the law and the rights of the parent left behind.
Globally, courts recognize that speed is of the essence to repatriate a child to their custodial parent when they’ve been taken to another country.
In Ontario, an application to the Superior Court of Justice must be filed immediately. Legislation in Ontario makes clear the time sensitivity and the urgency of getting these cases through the system.
An international agreement through the United Nations Hague Convention on the Civil Aspects of Child Abduction allows member countries to enforce court decisions from other member countries to protect against “the harmful effects of their wrongful removal” and to protect the rights of access.
The Hague Convention recognizes the incredible emotional trauma when a child has been unlawfully taken to another country. For the parent left behind, there remains the uncertainty of not knowing if they’ll ever see their child again.
The Hague Convention emphasizes the need for the expeditious return of a child who has been wrongly taken from a parent. The intended effect is that the order imposed in one country allows police and courts in another country to enforce that order.
All of the Canadian provinces have included the Hague Convention as complementary to their own legislation with respect to child custodial rights.
Subject to the Family Law Rules in Ontario, all international child abduction cases are to be heard by a judge within seven days of an Application for the child’s return. This rule is unique in provincial law.
“The seven-day rule reflects the urgency of achieving quick resolutions to abduction cases that involve member countries of the Hague Convention on the Civil Aspects of Child Abduction, an international agreement that includes Canada,” reports The Globe and Mail.
The importance of speed was recently emphasized when the Ontario Court of Appeal rendered a recent decision. In Leigh v. Rubio, Justice Mary Lou Benotto wrote for the majority that courts have a duty to resolve these applications quickly and efficiently, motivated by the fact that the case had suffered a long delay in being processed.
“Delay imposes hardship on the child, frustrates appellate review, and breaches our international obligations. To achieve prompt resolution, the court must strictly manage the process, control the evidence and the timelines, and recognize that custody and access orders (now called “parenting orders” under Canadian and Ontario law) are for another day,” the judge wrote.
The appeal court was critical that the child abduction case had lingered too long before the courts. The initial hearings and trial were held over six months and it took four months for the judge to write her decision.
Ultimately, the appeal court decided that the child, who had since turned nine after total delays of two and a half years, had become settled in his new home London, Ont. and ruled against returning the child to the other parent.
Under the Hague Convention, the child must be returned if gone for less than a year. But if the child has been gone for more than a year, a court could determine that the child is settled in the new surroundings and should remain.
In the Ontario case, the appeal court found that the mother from Peru had wrongly taken her child to Canada. And it found the court of first instance erred by delaying the case.
The mother argued at the appeal court that her son would be at risk of intolerable physical or psychological harm if returned to Peru, The Globe and Mail reported. Intolerable harm creates an exception to the principle of a prompt return under the Hague Convention.
Parents dealing with an international child abduction situation might find a guidebook produced by the federal government helpful.
We routinely advise separating parents to include conditions for travelling, including domestic and international travel, in their parenting agreements. Moreover, the custodianship of passports is a matter for serious consideration, particularly if your child has claim to more than one national identity. If you need help updating an existing agreement, I’d be happy to hear from you.