International Custody – Hague Convention

In Canada, when two people have a child they both have equal rights to the child, even if they are not married. That means that if you live with your child and there has been no custody order, you likely have custody of your child. Having custody means having the legal right and responsibility to make all the important decisions about a child’s life, including the child’s school, religion, medical decisions, etc.

When parents divorce or separate, they have to make arrangements for the care of the children and decide how these rights and responsibilities will continue. This can be done either through an agreement between the parents, or through a custody order from the court.

If you have custody of, or access to your child, you need to be aware of the possibility of an abduction of the child by the other parent. Abduction is when one parent takes a child without legal permission or consent of the other parent who has custody or access. If your child has been abducted from Canada to another country, the Hague Convention on the Civil Aspects of International Child Abduction can help with the return of the child.

The Hague Convention on the Civil Aspects of International Child Abduction:

The Hague Convention on the Civil Aspects of International Child Abduction (after here, called “the Convention”) is an international agreement that came into operation on 1st December 1983. It is an international law that applies to Canada, the United States, and many other countries around the world.

The aim of the Convention is to stand against child abduction.  It also aims to protect children from the harmful effects of being wrongfully taken out of the country through a fast process for the return of the child.

Does the convention apply to me?

The Convention will apply to you if –

  • Your child lived in Canada before the abduction
  • Both the country where your child lives and the country that the child is taken to are contracting states, i.e. both countries must have agreed to the Convention
  • The child is younger than 16 years of age and
  • You had custody and access rights at the time your child was abducted and were actually exercising those rights

What is the process for getting my child back?

If your child has been taken to a country where the Hague convention applies, you can file an application to have your child returned under the Convention. The information in the application will include details on the identity of the applicant (you), the identity of the child and of the person who has removed the child, the date of birth of the child and other information as required by the Convention.

The Role of the Central Authority:

Each country that the convention applies to selects a Central Authority. The Central Authority in each country work together to provide assistance in finding out where a wrongfully removed child is and in returning the child. However, the child should not be forced or threatened into returning. The Central authorities also work together to prevent further harm to the child by starting or helping to start proceedings for the return of the child.

What happens after I apply?

After you make your application, the central authority in Canada will send your application to the central authority in the country where your child has been taken. The two central authorities will work together to do a number of things, such as, find out where your child is, make sure your child is safe, help arrange the return of your child or help you and the other parent to come to an agreement, give you information about laws, assist with getting legal help, etc.

In the best-case scenario, the child will be returned voluntarily. If this fails or the parents cannot reach an agreement, there may be a trial, and the court will decide whether your child should be returned to Canada. The views of the child, if he or she is mature enough, will be taken into consideration at the trial.

Are there cases when my child would not be returned?

There may be cases where the court will refuse the return of your child. Some of the reasons why your application may be refused include:

  • It has been more than a year since the abduction, and your child has settled in the new environment.
  • Your child does not want to return and is old and mature enough to have a say in the decision
  • The court determines that your child is at serious risk of physical or psychological harm or will be put in an unbearable situation if returned to you.
  • The court finds that you agreed that the other parent could take the child
  • The court finds that you were not exercising your custody rights when the other parent took the child.

What can I do if my application is refused?

If the court refuses to give your child back, you may be able to appeal your case to a higher court in the same country. You can also ask a court to give you custody of your child under the laws of that country. It is important to get legal advice to figure out what is the best option for you.

If you find yourself in the position where your child is taken abroad in this manner, Lynsey Mincher is experienced in dealing with these cases and can help. Please contact Calgary Divorce and Family Lawyer,  Lynsey Mincher  at (587) 356 1013 or at lmincher@mincherkoeman.com


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