What can I do if my ex takes our children out of the country and refuses to return?
By Camille Boyer, Calgary Family Lawyer
International child abduction is a growing issue, becoming more and more common, in family law. Every year, children are removed from their home country, or not returned after a trip, against the wishes of their other parent.
The term “international child abduction” sounds serious because it is. Children can be traumatized by the sudden upheaval or being prevented from seeing the other parent. In some jurisdictions, in addition to family law remedies available, international child abduction is also considered a criminal offence.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Hague”) is an international agreement between a number of countries, referred to as “contracting states”, to protect children from the harmful effects of their wrongful removal or retention, and to establish procedures to ensure their prompt return. Therefore, the starting point is to determine whether the jurisdiction the child is in is a contracting state, to make certain the Hague applies.
If the Hague applies, the next step would be determining whether the child was “habitually resident” in another contracting state at the time of their retention or removal. Retention refers to when a child travelled with the other parent’s permission for a specified period of time, but is not being returned, whereas removal refers to when a child is taken out of the country without the other parent’s permission. Habitual residence refers to the child’s ordinary or established residence. There is no definitive timeline on how long it takes to establish habitual residence. Instead, habitual residence can be established in as little as one day so long as both parents, at the time, agreed to the move.
If the other requirements are met, the question then is whether the applicant (ie., the person seeking return of a child) had “rights of custody” to the child at the time of their retention or removal. The term “rights of custody” may be misleading, as it is not the same as access rights. The parent’s rights of custody, under the Hague, must include the right to determine a child’s place of residence. If there is a Court Order already in place specifying parents’ decision-making authority or confirming their status as guardians of a child, this may suffice as proof a parent has rights of custody. However, married parents of a child born during the marriage have rights of custody in Canada as a result of the operation of law.
There are some defenses available to a Hague application, but they are fairly limited. A primary purpose of the Hague is to ensure that custody and parenting determinations about children are made by the Court where they are habitually resident, and therefore, a Hague application’s scope is limited to the issue of habitual residence. Arguments about a child’s preference, connections with either parent, needs, or best interests will not usually be considered in a Hague application, with some limited exceptions.
One of those exceptions is if the child is of a sufficient maturity and age to object to the return. Since the Hague does not apply to children over the age of 16, a child who is nearing that age would likely be entitled to object to their return on this basis. In addition, if the child’s return would expose them to grave risk of physical or psychological harm, a Hague application may be rejected despite all other factors being met. However, the threshold for grave risk of physical or psychological harm is quite high.
Another defense to a Hague application would be that the other parent acquiesced or agreed to the child’s removal or retention. In addition, if more than 12 months have passed since the child’s removal or retention, there is no longer a “presumption of return” under the Hague. Instead, if a Court is faced with an application outside those 12 months, they must decide whether the child is now settled in the new jurisdiction or should still be returned. It would be difficult to proceed with a Hague application outside of those 12 months as the child will most likely have settled into their new location by then.
This is one of the many reasons to act very quickly if a child has been abducted internationally. In addition to the stress and trauma caused by international child abduction, a parent’s remedies under the Hague are time limited. There may be other remedies available to parents, such as interjurisdictional enforcement laws or the granting of mirror Orders in the state the children are in, but timely action will still be essential.
The family lawyers at Crossroads law have a history of success in international child abduction matters, as well as interjurisdiction enforcement and other remedies. Contact us today to schedule your free consultation.