The Hague Convention On International Child Abduction
One of the biggest issues when a child is abducted to another country, and you need to get that child back, is determining which country’s court has the jurisdiction to deal with the issue. The Hague Convention sets up central bureaus in the country of each of its signatories. People go to these bureaus to apply for assistance in getting the child back. If the two countries involved are Hague Convention signatories, those two central bureaus work together to decide which court should determine custody of the child. They help parents in that way, acting as a liaison between two countries to find the best venue for bringing an application to determine who has custody of the child. It’s a practical asset for parents if the Hague Convention is applicable in the jurisdiction that the other parent has chosen to run to.
There is the possibility of some difficulties in the process, of course. For example a country can be a signatory to the Hague Convention, but they don’t necessarily have it incorporated it into their laws. So they may have that central bureau set up, but that bureau may not necessarily do all that it is supposed to do. There are also issues sometimes with determining the definition of where the child is what we call “habitually resident.” The two central offices work together to figure out where the custody orders should be made, but there is sometimes vagueness because the language of the Hague Convention doesn’t clearly define what determines where the child is habitually resident. The residence claim is what we typically use to determine which court should hear the case. Nevertheless, the Hague Convention is certainly helpful if for no other reason than that it offers parents somewhere to go for assistance in liaising between the parent who is still in Canada and the parent who’s abducted the child into another jurisdiction.
If the parent takes a child to a country that has not signed the Hague Convention, then the situation is slightly more difficult. The biggest issue is that the two jurisdictions will not be working together to figure out where the custody order should be made. It can be extremely difficult to find a lawyer in that jurisdiction and get them to help you. Another problem is that many other jurisdictions have different laws and that can make things significantly more difficult. In such a case, I would probably recommend to a client to seek help from the RCMP because they may be able to liaise with police and authorities in the other jurisdiction. An immigration lawyer might also be helpful to assist in understanding the laws in the other country and how you can try to get your child back using their legal system.
But this situation is full of difficulties. Even if you are the custodial parent in Canada, and you’re able to get the custody order here, how does that translate into bringing the child back home? You still have to through the courts of that other jurisdiction just to get your custody order enforced. These are issues that courts typically take as urgent, on an emergency basis, but what constitutes an emergency basis changes with each jurisdiction. There is no way to estimate how long this procedure will take, and that’s very stressful for the family. The countries who have signed the Hague Convention provide parents with a mechanism to address the problem and work towards a solution.
If you, or someone you care about, is dealing with family law issues in York Region, Durham Region or Toronto, contact Feldstein Family Law Group for a consultation.
This article is taken from a July 31, 2008 interview with Andrew Feldstein, Family Lawyer with Feldstein Family Law Group, a Toronto Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.