International child abduction is unfortunately common. A child may be taken to a foreign country by a parent or grandparent without permission or not returned to Canada at the end of a vacation abroad. Situations involving parental kidnapping and international custody disputes are extremely traumatic and stressful, involving foreign legal systems, different languages, and physical distance.
If your child has been taken from Canada without your permission, you have legal options to secure your child’s return. This article will provide an overview of those options. Before you begin reading, please keep in mind that if your child has been abducted and kept outside of Canada it is extremely important to act quickly and get trustworthy legal advice from an international child custody lawyer.
British Columbia family lawyer on international child abduction
An international child abduction happens when a child is taken from Canada or kept outside Canada in breach of the rights of custody of another person—usually the other parent—or in breach of a court order. Child abduction is a criminal offence in Canada.
From a legal perspective, the difficulty when a parent abducts a child to another country is that the laws and procedures of that foreign country are usually very different from the laws in Canada. Child “custody” in British Columbia is governed by provincial and federal laws, but those laws do not apply outside of our borders. This raises issues of jurisdiction. Even if you have a BC custody order or separation agreement in place, you cannot simply contact the police or authorities in a foreign country and ask them to enforce your Canadian Order of agreement.
Options for seeking return of an abducted child
These are the main options for the parent whose child has been abducted across international
1. Negotiate with the abducting parent for the voluntary return of the child. The other parent may realize their mistake or change their mind about what they have done. You or your lawyer may be able to convince the other parent to return the child. It may also be helpful to involve a mediator, family, and/or friends to help resolve the conflict. Direct negotiations are usually the fastest and least expensive option and are also private because they happen outside of the courts.
2. Apply for the return of the child under the Hague Convention. The “Hague Convention on the Civil Aspects of International Child Abduction” applies when a child is taken to, or kept in, a country that is a party to the Convention. About 90 countries are “contracting parties” to the Convention (see here for a list of current parties). The option of proceeding by way of a Hague Convention application is discussed in more detail below.
3. Apply for a parenting/custody order in the foreign country. If your child is being kept in a country that is not a party to the Hague Convention, the situation will be more difficult and complex. It may be possible to take steps to have a Canadian custody order recognized and enforced in the court of the foreign country. Or, you can apply for a parenting or custody order in the local courts of that foreign country under their child custody laws. You may be advised to try more than one option at the same time.
Hague Convention Application
If your child has been wrongfully removed from Canada or is being wrongfully retained in a
country that is a contracting party to the Hague Convention, you can apply to have your child
returned to Canada under the Convention. The Convention only applies if:
your child is under the age of 16 years;
your child was “habitually resident” in Canada before being wrongfully taken to or retained in another country. This is a legal test but, generally speaking, habitual residence is the place of the child’s ordinary or established residence; and
your child was taken to, or is being retained in, that country in violation of your of court order or your “rights of custody.”
o Rights of custody refers to rights relating to the care of the child and, in particular, the right to determine the child’s place of residence.
o It is not necessary to have a parenting or custody order in place to apply for the return of a child under the Convention but having one may help the court in the foreign country decide whether your child was abducted.
The Convention is intended to provide a quick court process to apply for a child’s return to their habitual residence. The application is heard and decided in the country where the child has been taken. The court in that country applies the Hague Convention to determine if the child should be returned to Canada. The facts are typically provided by the parents in sworn affidavits and not by oral evidence which means that the parent left behind does not have to travel to the foreign country for the court hearing.
The court in the foreign country hearing the Hague Application does not decide which parent should have custody or guardianship of the child. The court is limited to determining whether the conditions for the return of the child under the Hague Convention are met. The issue of child custody is left to be decided by the courts of the child’s habitual residence if the child is ordered to be returned.
A foreign court may refuse to return a child under the Hague Convention. These are some of
the reasons an application may be refused:
the application was started more than a year after the date of the abduction and the child has settled into the new location;
the parent bringing the application was not exercising rights of custody when the other parent abducted the child;
the parent left behind gave consent or later agreed to the child being taken from or kept outside Canada;
there is a grave risk that returning the child would expose them to physical or psychological harm or put them in an intolerable situation; and/or
the child objects to being returned and is old and mature enough to have a say in the decision.
Advice on International Child Custody British Columbia
In times of family problems, you want someone who understands your situation and who can expertly guide you through the legal process. You want your family situation handled with the utmost care in the most timely way possible. Valerie recognizes the importance of these concepts and will help you in every way she can.
Whatever your situation may be, Valerie’s goal is to take care for your legal needs so you obtain the best possible legal result. Contact our international custody lawyer today at 604-526-3333 or by completing the Contact Us page in order to get the help you need for your unique family law situation.
Valerie M. Little has been helping people resolve their family issues for more than 25 years throughout the Lower Mainland of BC, including: Coquitlam, Port Coquitlam, Burnaby, Maple Ridge, Langley and New Westminster.
She listens. She cares. She understands.