What To Do When Your Child Is Taken Without Permission From Canada To Another Country?

If you’re reading this, you may have found yourself in a situation where your child’s parent or guardian has removed your child from Canada without your permission.  Legally speaking, this may qualify as an ‘international child abduction.’

The Canadian government defines an international child abduction  as when “a child [under the age of 16] is taken from or kept outside Canada (usually by a parent or guardian) in breach of the rights of custody of another person (usually those of the other parent) or in breach of a court order.”

What To Do First?

Firstly, if your child has been abducted, make sure to immediately contact the police.  Make sure to contact your local police as well as the RCMP.  It may also be a good idea to contact your friends and family, the child’s other parents or guardians (even any parties you may suspect to be culprits in your child’s removal), or your child’s school to make absolutely sure of the child’s whereabouts. 
Beyond that, you may want to contact Passport Canada, or Canadian Consular Services, who can flag your child’s passport if there is an attempt to bring them across a Canadian border. 

If your child has been abducted from Canada to a country where the Hague Convention applies, you may want to contact the Central Authority of your province.  Central Authorities are offices in each province and territory that manage international child abduction.  In addition to the provincial and territorial Central Authority officers, you may contact the Central Authority at the federal Department of Justice. 

International Law and Central Authorities

There is international law designed to return children to their home country. This legislation is called the Hague Convention or, more formally, the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.  The purpose of this Convention is to protect children from wrongful removal from their home country and to ensure their prompt return. 

The Hague Convention applies in Canada and in nearly 100 other countries worldwide.  It does not apply between provinces.  It applies only when certain requirements are met:

1. The child was taken in violation of custody or access rights under the child’s resident state;
2. At the time the child was taken, these rights were actually being exercised, or would have been if the child hadn’t been removed or retained;
3. The child was a habitual resident of the contracting state immediately prior to his or her removal or retention;
4. The child is under 16 years of age.

Is It Mandatory For A Child To Be Returned?

It is important to make sure you act in a timely manner.  Mandatory return of the child is only required if:

1. Less than one year has passed from wrongful removal or retention to the date of the commencement of the proceedings
2. Proceedings are commenced a year or more from wrongful removal or retention, unless it is demonstrated that the child is now settled in his or her new environment.

However, there are exceptions to this.  Mandatory return of the child may not be enforced if:

1. There is a grave risk that the child’s return would expose her or him to physical or psychological harm or otherwise place the child in an intolerable situation;
2. The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views;
3. The person requesting return of the child did not have custody rights in the first place, or they had consented to or subsequently acquiesced in the removal or retention;
4. The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

Even if mandatory return is not required, there are still several factors to consider when a judge decides whether a child will be returned, including:

• whether the child objects to being returned
• Where the child habitually resided before the removal or retention
• Whether the child is, after a year, settled in the child’s new environment
• Whether there has been consent or acquiescence

Whether there is a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Children’s Right to Participate

If a child has been removed from their country of habitual residence, it isn’t as simple as demanding their return.  Under the international law, children often have the right to participate in their proceedings, or even to object to their return.  The law highlights multiple areas of importance when it comes to the rights of children to participate.

In terms of capacity – determining whether the child is actually capable of participating in their proceedings – the courts are likely to rule that a child over 10 years of age has capacity to participate but, depending on the facts, the court may consider the views of children who are even younger than that.  In the case Garcia Perez v Polet, the court considered the views of an eight-year-old in rendering its decision on whether to return the child.  The courts also consider whether independent legal representation has been provided for the child or whether they have been added as a party.  Also, decisions need to be made expeditiously, all while effectively considering the child’s views. If these things are missing, the courts may find that the child was denied procedural fairness.

Conclusion

The process for determining whether a child can be returned to their home country is nuanced, which is why it’s so important to contact a qualified lawyer. Collectively, the team at Progressive Legal Services has years of experience in family law and is capable of fighting for your interests.  We welcome you to schedule a 1-hour consultation today.

Written by: Keanin Parish