The laws of Canadian provinces and territories generally provide that both parents have equal legal custody of a child, as long as there is no custody order and the child is living with them. If you are considering separation or divorce, if you are already separated or divorced, or if you were never legally married to the other parent, discuss the custodial arrangements with your legal counsel. A lawyer can provide you with the necessary information to deal with your specific circumstances. A well written custody order is important in dealing with parental child abductions, especially if the other parent is a landed immigrant or is a Canadian citizen with ties or citizenship with another country.
The first question in inter-provincial child snatching cases is whether the Alberta Courts or those in the province or territory to which the child is taken have jurisdiction.
All superior courts have parens patriae jurisdiction over the child. This jurisdiction may be based on domicile of the child, ordinary residence, or presence of the child.
In cases where one province may have jurisdiction based on the physical presence of the child, the second based on ordinary residence within the territorial jurisdiction of the court, the court which is hearing a custody application must address the question of whether it should exercise the jurisdiction which it possesses. The court will examine the following factors:
- Availability of witnesses to be called;
- Whether the evidence is available in Alberta;
- Where the children normally reside;
- The length of time the children have been in Alberta;
- Where the children physically reside;
- The ties of the children to the community in each jurisdiction;
- Were the children wrongfully removed to the other jurisdiction;
- Was there justification for the removal of the children, for example, risk of harm;
- The conduct of either party in forum shopping (choosing a court in a different Province or Territory) to gain an advantage;
- Where custody can be most quickly and inexpensively resolved;
- Would the removal of the children from Alberta (assuming the children were brought to Alberta from another Province or Territory) cause them harm;
- If Alberta exercises jurisdiction will it bring the administration of justice into disrepute.
In Alberta, the Extra-Provincial Enforcement of Custody Orders Act provides for the enforcement of an extra-provincial custody order as if that custody order had been made by the Alberta Courts unless it is satisfied on evidence that the child affected by that custody order did not, at the time the custody order was made, have a real and substantial connection with the province, state or country in which the custody order was made. In addition, the court may vary a custody order, if it is satisfied the child affected does not have a real and substantial connection with the province, state, or country in which the custody order was originally made.
There are a number of facts that the court looks at in varying a custody order and legal counsel should be contacted to assist. Furthermore, while the other Canadian provinces have similar legislation to that of Alberta, there are differences. For example, in the manner in which the other provinces’ courts determine the basis of exercising jurisdiction regarding a custody matter. For these reasons, legal counsel should be sought to assist in the recovery of children taken from one province or territory to another part of Canada.
The Divorce Act also addresses wrongful removal, by allowing the court to order notice to a non-custodial parent before a custodial parent removes a child to another jurisdiction. The Divorce Act also enables a divorce custody order to be registered in another province by means of a very simple procedure and by virtue of the fact that the Divorce Act is a federal statute applying throughout Canada, it may be preferred over provincial legislation such as the Extra-Provincial Enforcement of Custody Orders Act.
In Canada, in addition to being a civil law problem, removal of a child may be a criminal offence. It may amount to a violation of section 282 or 283 of the Criminal Code, criminal breach of custody rights. If there is no custody order, permission of the attorney general (represented by a chief or assistant chief crown prosecutor) is necessary to lay a charge.
Using the Criminal Justice System
Parental abduction is a criminal offence under the Canadian Criminal Code. The criminal justice system can be useful in locating and recovering the child, especially when the person suspected of abduction has not left Canada or is on the verge of doing so. Use of the Criminal Code makes it easier for the police to search for and locate a child. An arrest warrant is generally issued, often improving cooperation between the police services both nationally and internationally. If necessary, an extradition request may be made if there is a treaty with the county in which the abductor has been located. Extradition may prove to be of no value in cases of international abduction. There is no guarantee that the child will be returned by foreign authorities even if they permit the extradition of the alleged abductor. Furthermore, not all countries regard child abduction by one of the parents as a criminal act. The Canadian Government can provide information regarding the criminal justice system in the country in question and whether they are likely to cooperate in parental child abduction cases.
Communication and Compromise
When the abductor has taken the child to a non-Hague country, communication and compromise may be the best option available to the searching parent. Negotiation with the abducting parent or the abducting parent’s family may lead to a compromise. As well, community or religious leaders may be willing to intervene on your behalf. Such actions might not produce immediate return of the child but could promote your ability to visit with your child and participate in decisions affecting his/her welfare and well being.
International Law: The Hague Convention
Over 50 years ago, the international community recognized the need for cooperation between countries to find a solution to international custody/abduction problems. The Hague Conference on Private International Law, an international organization based in the Netherlands, accepted a 1976 Canadian proposal to resolve these problems. The negotiations led to the Hague Convention on Civil Aspects of International Child Abduction. Canada ratified the Convention, which came into force on December 1, 1983. It has been subsequently adopted by the Province of Alberta, in addition to other provinces and territories. The Convention currently applies throughout Canada and in over 80 countries.
The objectives of the Hague Convention are:
- To secure the prompt return of a child wrongfully removed to or retained in any contracting state, to the environment from which the child was removed; and
- To ensure that rights of custody and of access under the law of one contracting state are effectively respected in other contracting states.
- The Convention requires the following:
- Your child was habitually resident in Canada immediately prior to the removal or retention;
- The removal was in breach of custody or access rights as determined either by law (for example, in Alberta a husband and wife are joint custodians of their child in the absence of a court order to the contrary) or by judicial order;
- At the time of the abduction, the Convention applied to the country to which your child has been taken and/or is travelling through;
- Your child is under 16 years of age;
- The removal took place less than one year ago.
Defences under the Hague
- the applicant was not actually exercising custody rights at the time of the removal or had consented to or subsequently acquiesced to the removal;
- there is a “grave risk” that the return of the child will expose the child to physical or psychological harm;
- the child objects to being returned and has obtained an age and degree of maturity at which it is appropriate to take account of the child’s views;
- the return of the child would not be permitted by fundamental principles relating to the protection of human rights and fundamental freedoms.
How to Bring an Application for the Return of a Child Under the Hague Convention
If your child has been abducted to or is being retained in a country other than Canada and you are aware of the location, you should contact the office of your provincial Attorney General, Minister of Justice or your Territorial Department of Justice. These departments have special sections designated as the central authority for your province or territory, which are responsible for the administration of the Convention. The Federal Government, through the Department of Justice also has a central authority to assist the provinces and territories.
The central authority will provide you with the following:
- how to proceed with an application under the Convention;
- up to date information on participating countries;
- discovering the whereabouts of your child;
- prevent further harm to a child by taking provisional measures;
- attempt to secure the voluntary return of your child;
- provide or facilitate the provision of legal aid and advice, including recommendations regarding legal counsel. Your central authority will provide you with a copy of the Convention approved application form which will require the following:
- information on your identity;
- the identity and date of birth of the child and the identity of the person alleged to have removed or retained the child;
- all available information concerning the whereabouts of the child and the identity of the person with whom the child is presumed to be;
- a statement of the grounds proving your right to have the child returned (you must prove the wrongful removal or retention of the child and your custody rights);
- supporting documents, such as a certified copy of the judgement, order, or agreement which provides that you have custody or access rights, where such a document is applicable;
- a statement giving the foreign central authority the right to act on your behalf.
Depending upon where your child has been removed to, it may be necessary for you to secure a translation of your documents to the official language of the country concerned.
The Canadian Central Authority will transmit your application to the country of the Central Authority that your child is believed to be in. If the foreign central authority cannot arrange to have your child voluntarily returned, a court hearing will take place at which time your rights will be represented by a lawyer acting on behalf of the foreign central authority. The alleged abducting parent can also have legal representation at the hearing to contest your application. It is advisable to have legal counsel in the province or territory that you are living in to assist the central authority in the foreign jurisdiction to obtain the timely return of your child. If a decision is not reached within six weeks of the date of your application, the Canadian Central Authority may request a statement explaining the delay from the foreign central authority. It is important to note, that any decision can be appealed to higher courts in accordance with the judicial process of the country concerned.
Central Authorities do not impose charges for their assistance. However, there could be costs associated with the court proceedings and legal counsel. Some countries may provide legal counsel free of charge; some countries may provide for legal aid; and yet others may require you to retain your own lawyer at your expense. While it is not essential that you travel to the country handling your Hague Convention application, it is certainly advisable that you be present. Should your Hague application be successful, it is recommended that you accompany your child on his/her return to Canada. You will of course be responsible for travel costs in having your child returned to Canada unless you meet the requirements of the RCMP’s travel reunification program which may be able to provide assistance to you free of charge.
Assistance Regarding Access Rights
If you are having difficulties with respect to your access rights, your provincial/territorial central authority may also help you with an application under the Hague Convention. However, with respect to access rights, the same enforcement machinery is not available to an access applicant as compared to an applicant that has custodial rights.
International Law: Non-Hague Countries
If your child has been abducted to a country that is not a party to the Hague Convention, it is still possible for you to take actions both in Canada and abroad to obtain the return of your child. In Canada, the civil justice system can be used to attempt to enforce your custody rights, and if appropriate, the criminal justice system can be used to initiate criminal action against the abductor. In all likelihood, it will be necessary for you to obtain legal counsel in the non-Hague Convention country that your child has been abducted to. It will be essential for you to seek qualified legal counsel and guidance before taking specific action by contacting counsel in your own province/ territory in addition to the non-Hague country.
The Canadian Consular Affairs Bureau can provide you with general information on the legal system of the non-Hague country, such as customs and practices as they relate to parental rights and the experience of other people prior to your requesting that country’s justice system to return your abducted child.
Canadian officials in Ottawa and at a Canadian diplomatic or consular mission abroad can provide you with a list of lawyers who speak English or French, who may be experienced in parental child abduction or family law to assist you with your application.
Lawyers fees vary widely from country to country and could be substantially more than what would be paid in Canada. You should be very careful in making arrangements for legal representation in a foreign country and ensure that the arrangements are in writing and that you fully understand what your foreign lawyer will and will not do and at what cost.
Legal counsel in the foreign country will advise you on information and documentation that will be required in order to represent you within that country’s justice system.
Note that a custody order issued by a Canadian court has no binding legal force outside of Canada. However, such an order could be persuasive in support of any legal action that you undertake. Courts in other countries, just as in Canada, must decide child custody cases on the basis of their own domestic law. This may give an advantage to the person who has abducted your child if the abduction is to a country of his/her nationality or origin. You could also be at a disadvantage if the foreign country decides custody cases on the basis of gender. Remember that each country is unique, and you will have to decide whether or not to proceed with legal action.