CANADA Law and Practice Contributed by: Shannon Beddoe, Annabelle Lim and Susannah Mungall, McCarthy Hansen & Company LLP
3.3 Hague Convention on the Civil Aspects of International Child Abduction Canada is a signatory to the Hague Convention. Therefore, a Canadian court would follow the process outlined in 3.2 Steps Taken to Return Abducted Chil- dren in deciding whether to order the return of a child. Canadian courts will use a “hybrid approach” to deter - mine a child’s habitual residence ( Office of the Chil - dren ’ s Lawyer v Balev , 2018 SCC 16). This approach requires considering all relevant factors, including the child’s links to both countries (school, friends, lan - guage, extended family, community involvement), the circumstances of the move (temporary v indefi - nite, reasons for relocation), and parental intentions, without any single factor dominating the analysis. The inquiry is fact-specific, and the list of potentially rel - evant factors is not closed. There are no rigid rules, formulas, or presumptions. The Supreme Court of Canada has noted that a child’s habitual residence can change while they are staying with one parent under time-limited consent from the other, provided the overall circumstances show that the child has become integrated in a new environ - ment ( Office of the Children ’ s Lawyer v Balev , 2018 SCC 16). Courts in Canada apply the principle that the Hague Convention’s default is immediate return and treat the exceptions listed in 3.2 Steps Taken to Return Abducted Children as narrow and exceptional. Free and Subsidised Legal Advice Articles 7 (g) and 25 of the Hague Convention provide that contracting states should facilitate the provision of legal assistance and advice to left-behind parents. The Central Authorities in Canada help left-behind parents by: • providing information and procedural guidance; • helping to prepare and transfer applications; and • connecting parents with local lawyers or legal aid where possible. Each province has its own legal aid scheme, which may provide free or subsidised counsel in Hague Con -
• The removal or retention breached custody rights. • The applicant was exercising custody rights at the time. If the above elements are established, the court must generally order the child’s return unless one of the following exceptions is met: • Consent or Acquiescence: The left-behind parent agreed to the move, or accepted it after the fact (Article 13 (a)). • Grave Risk of Harm: Returning the child would expose them to physical or psychological harm or an otherwise intolerable situation (Article 13 (b)). This is the most frequently raised defence, and courts scrutinise it closely. • The Child Objects: The child of sufficient age and maturity objects to being returned (Article 13). • The Child is Settled in the New Environment: More than a year has passed and the child is now settled in the foreign jurisdiction (Article 12). • Fundamental Freedoms: Returning the child would violate the fundamental principles of the foreign country relating to human rights and fundamental freedoms (Article 20). After commencing a Hague Application through the relevant Central Authority, the left-behind parent may also seek relief from the Canadian courts. The appli - cant parent may bring an urgent motion in the relevant provincial court to prevent further relocation of the child and support enforcement of any eventual return order when the child is back in Canada. Non-Hague Convention Countries Where the child is taken to a country that is not a party to the Hague Convention, the Hague Conven - tion’s return mechanism is unavailable. Therefore, the left-behind parent will generally have to rely on the foreign country’s domestic family law and court system or diplomatic efforts. This will almost always involve retaining local counsel in the foreign country where the child is located. Because of this, outcomes in non-Hague Convention cases tend to be more vari - able and slower.
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