In modern society, many families move both within Canada and internationally during their relationship. Many families develop ties to a number of different legal jurisdictions, and they acquire property in different jurisdictions. The development of personal and property connections may have a dramatic impact on the steps that parties need to take when they separate. In some cases, a parent may seek an order allowing them to relocate further away from the other parent, in what is known as a mobility application. However, some parents seek to move further away, across international borders and may relocate with a child without the consent of the other parent.
When a matter involving decision-making responsibility (custody) or parenting time (access) crosses borders, time is of the essence. If a parent takes a child to another country without consent or fails to return from another country as planned, this can necessitate what is commonly known as a Hague application in order to return the child to their home country. A parent seeking an order to return their child to Canada is often frantic and facing a situation in which they feel wholly unprepared. An experienced lawyer will provide the necessary guidance, advice and quick action to ensure that the parent is prepared to do everything in their power to bring their child home.
Mincher Koeman‘s family law lawyers have helped several clients through the process of bringing a Hague application. We will provide sound and empathetic counsel, and act swiftly and effectively while ensuring that protocol is followed and time restrictions are met under the law.
Parents in Canada have an equal right to their children, even when the parents were never married. In most situations involving the breakdown of a relationship, the parents will work together, or seek an order from the court, with respect to their decision-making responsibility and parenting time rights (formerly “custody” and “access”). However, sometimes a parent will take it upon themselves to relocate with a child to a foreign jurisdiction without the input of the other parent, which is known as abduction. Such situations are governed by an international treaty known as the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), which is signed by approximately 100 countries. If a parent has taken a child to one of these countries or failed to return as planned from a party country, the parent seeking the child’s return can bring what is known as a Hague application.
The Hague Convention applies to all situations of international child abduction from Canada where the following criteria are met:
Each country that is a party to the Hague Convention has a designated central authority. The central authority is tasked with assisting those seeking the return of a child under the Hague Convention. The respective authorities work together to ensure a swift resolution and prevent any harm to the child.
A Hague application must be brought in the country to which the child has been taken. As legal jurisdictions and customs differ considerably around the globe, this can be a very complex process. An experienced lawyer will provide guidance and will handle the application on behalf of the parent. The proceeding must be started within one year of the child being taken or failing to return from the jurisdiction in question. Proceedings are generally conducted solely via affidavit evidence and do not require in-person testimony. This is to facilitate a quick resolution, and the process will only be deviated from in circumstances where a parent’s credibility may be at issue.
Once an application has been filed, the authorities will work together to come to a resolution, which will hopefully involve the return of the child. In situations where there is considerable disagreement among the parties, a trial may become necessary. Children who are old enough to express an opinion on the matter will have their voices heard as well.
In certain circumstances, it may be determined that it is not within the best interests of the child for them to return to the parent in Canada. This may be the case if the child will potentially be in danger if returned, if the child is old enough and expresses a desire not to return, or if the parent seeking the child’s return had gone back on a previous agreement for the child to relocate, among other reasons.
Timing is key when considering a Hague application for the return of a child from a foreign jurisdiction. At Mincher Koeman, our family lawyers have the necessary experience to help a client navigate this complex process, and will act with urgency to do so. We will provide empathetic and skilled guidance throughout the process and seek a quick and effective resolution for both parent and child. If you are facing a matter that may necessitate a Hague application, contact our offices for a consultation by calling us at 403-910-3000 or by contacting us online.
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