The Hague Convention is an international treaty that 94 countries, including Canada, have joined. The purpose of the Convention is to determine which country is the country of habitual residence for the child. It also protects children from the harmful effects of international abduction from a parent by encouraging the prompt return of the children. The end result of the Hague determination being those matters regarding decision making and parenting time will be decided by the proper court in the country of the child’s decided habitual residence.
Thus, a decision under the Hague Convention cannot rule on issues of parenting time or decision-making responsibilities. When you apply for the return of the child under the Hague Convention, you are asking authorities in another country to return your child to Canada so that the courts here can make determinations on parenting issues.
The Supreme Court of Canada has recognized the flexibility that the Convention grants courts in the requested state. In the case of Thomson v Thomson, LaForest J notes that the courts have recognized that a return order may have detrimental short-term effects on the child’s best interest due to the disconnect between the child and the primary caregiver. Thus, the undertaking of the Hague Convention enforces compliance from both parents with the requirement that the child be immediately returned to their habitual residence.
The Hague Convention exhibits a different legal analysis than that of family court. Its analysis determines where the habitual residence of the child will be and whether the return of the child shall be permitted. The legal test, defenses and considerations made at the Hague Convention are listed below.
Threshold for a proceeding under the Hague Convention
To obtain the return of the child, through the proceeding of the Hague convention, the party issuing a claim must prove the following:
- The child has been wrongfully removed to Canada;
- The child is under 16;
- The child was a habitual resident in the contracting state prior to the abduction;
- The international travel was a violation of the other party’s custody rights;
- The abduction occurred when the other parent was exercising their custody rights;
- The removal clause in the custody order was violated; and
- The Convention was in force between the nations at the time of the abduction.
If the following considerations are met, the party shall contact an experienced family lawyer to begin the application process. If the court rules that the threshold has been met, a return order for the child may be granted.
Defenses of the Hague Convention
Under the Convention, Article 13 provides the three exceptions to the requirement for return in such circumstances, of which the court is concerned with whether:
- The child’s return will result in a grave risk to their physical or psychological well-being;
- The child exhibits an age and degree of maturity at which the court can take account of the child’s views; or
- The party seeking return was not in fact exercising rights of custody at the time of the wrongful removal or retention.
A judge will examine the claims and defenses to determine whether the child was wrongfully removed, and which jurisdiction is the appropriate forum to determine parenting time issues.
Determining habitual residence
If the threshold for an application at the Hague Convention is met, the court will review the facts presented by both parties and determine the habitual residence of the child and whether a return to another state shall be rendered. In Office of the Children’s Lawyer v. Balev, the Supreme Court of Canada sets out how the application judge should determine the child’s habitual residence. The three possible approaches are the:
- Parental intention approach- holds that the time-limited travel to which the parents agree does not change the child’s habitual residence.
- Child-centered approach- holds that the judge should look at the child’s relevant links to and circumstances in each country.
- Hybrid approach- holds that the judge should look to all relevant considerations arising from the facts of the case.
Proceedings at the Hague Convention are serious and require experienced legal counsel that understands the nuances and complexities of diverse legal systems and perspectives. If you and/or a loved one have any questions about the Hague Convention or issues regarding child abduction in family law matters, please contact our lawyers today.
Disclaimer: This blog sets out a variety of information relating to the law that is to be used for educational purposes and is not legal advice for your particular situation. The author(s) of this blog do not intent the blog to be a source of legal advice.
Written by Adriana Totera
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
