What is the Hague Convention and how can it help if my ex-partner takes our children out of Canada?
The Hague Convention is a tool to assist in having children returned who have been wrongfully removed from one jurisdiction that has signed the Convention to another that has also signed it.
It is an international treaty, the full name of which is the Convention on the Civil Aspects of International Child Abduction, which Canada has signed and ratified and which is incorporated into the Children’s Law Reform Act, giving it full force and effect in Ontario.
As of September 2017, 98 countries have adopted the Convention. If children have been wrongfully removed from Canada you must determine whether they have been taken to a country that has signed the Convention.
If not, the Convention will not apply. A woman in this situation will have to rely on the domestic family laws and processes of that country in her attempts to have her children returned to Canada.
The Hague Convention addresses international abductions; where a child is wrongfully removed or not returned when she should be from one province to another, the parent seeking the return of the child must turn to federal and provincial family laws for assistance.
Its primary focus is on custody, not access, rights, although these lines are not always clear and distinct.
What is the objective of the Hague convention?
The Hague Convention exists to assist in the return of children who have been improperly taken from the country where they are habitually resident or who have wrongly not been returned to that country.
In effect, the Convention assists in maintaining or returning the family to the status quo: that is, the situation that existed before the child was taken/not returned.
It is not the objective of the Convention to make determinations about the child’s best interests or appropriate custody and access arrangements. Any decision to return a child is not to be interpreted as determinative as to the appropriate custodial arrangement for the child. In fact, the Convention is clear that jurisdictions dealing with a “Hague application” are not to investigate or consider the child’s best interests: this will be undertaken by the appropriate jurisdiction once the child has been returned to it.
For example, if a father removes his child from Canada during a custody proceeding and the mother is successful in having the child returned, the custody proceeding will pick up where it left off. The mother, of course, will be free to introduce new evidence about the father’s abduction of the child, and the father to introduce any evidence he may have to explain why he took the child. The court will make its decision about custody and access using all of the evidence and could, depending on the evidence and despite the decision under the Hague Convention to return the child to Canada, find that it is in the child’s best interests that the father have custody.
What are the requirements for the Convention to apply?
For the Convention to apply, the following criteria must be met:
- The child must be 16 years of age or younger
- The child must have been habitually resident in the “left-behind” jurisdiction
- The parent left behind must have rights of custody and must have been exercising those rights at the time the child was taken or not returned
If these questions are answered in the affirmative, the jurisdiction must consider whether there are any exceptions as set out in the Convention that would mean the child should not be returned to the original jurisdiction. Those exceptions are:
- Where the person seeking the child’s return was not actually exercising the custody rights at the time the child was removed or retained or consented to or acquiesced in the removal or retention, or
- There is a grave risk that returning the child would expose her to physical or psychological harm or otherwise place the child in an intolerable situation.
What is the Central Authority?
Every country that has signed the Convention has a Central Authority, which has the role of assisting with requests from other countries as well as providing assistance to those using the Convention to find a child and have her returned.
While the Convention is quite explicit about the duties of the Central Authority with respect to other countries, it is less specific about the Authority’s responsibilities to assist the person using the Convention, with the result that there are considerable disparities from country to country
Ontario’s Central Authority is the Ministry of the Attorney General and, as with the rest of Canada and the United States, the Central Authority does not generally act as the Applicant in court proceedings or provide legal representation to a parent seeking the return of a child, meaning parents must find their own lawyer to represent them.
How does someone bring a Hague application?
There are a number of factors for anyone considering bringing a Hague application to be aware of:
- The application is brought in the country to which the child has been removed or from which the child has not been returned not the country from which the child has been taken. In other words, if a woman in Ontario is seeking the return of her child, who has been wrongly removed by the father to, say, Chile, her application will be dealt with in the Chilean courts. Chile is referred to as the requested state and Canada as the requesting state
- Proceedings must be started within one year of the time the child has been wrongfully removed from her habitual residence. There may be exceptions to this if more than a year has passed but the child has not settled in the new jurisdiction. However, anyone considering a Hague application should move as quickly as possible to start proceedings
- Even though the proceeding is described as an application, generally, the procedure is a summary one and decisions are made based on affidavit and not oral evidence. This is because the objective of the Convention is for the “prompt return” of a child and states that countries must use the “most expeditious procedures available” to achieve that objective. Requiring hearings in which oral evidence will be given by the parties would delay the proceeding considerably so, with one primary exception, evidence is produced in affidavit form, as with a motion. The exception is when there are important credibility issues which cannot be resolved through the use of affidavit evidence only
What do all the terms mean?
One of the challenges for laypeople (and for lawyers inexperienced with the Hague Convention) is understanding the terms. There is language in the Convention that is unlike any to be found in family law and there are terms that seem similar but have quite different meanings. Below are some of the key terms, with simple definitions which are not intended to take the place of having them explained by an experienced lawyer.
Rights of custody: The ability of a person to use the Convention to seek the return of a child is based on that person having what the Convention calls “rights of custody.” This is not the same as having legal custody. The Convention defines the term as:
“ ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.”
This is broader than the way in which we understand the term custody within the framework of family law in Ontario, and means, among other things, that a parent can have rights of custody whether or not a custody order or agreement is in place.
Actual exercise of custody rights:
Before the Hague Convention will apply, the parent seeking the return of the child must have rights of custody, as described above, and must be exercising those rights of custody at the time the child was removed.
This requirement has generally been interpreted to mean the parent must have some, even if minimal, involvement with the child, such as telephone contact and/or visits. Even where a parent appears to have given up expectation of contact with her child, she may meet the requirement of exercise of custody rights (where, for instance, the abuser is withholding the child from the mother for some period of time and then removes the child from the country where the family had been living).
The requested state must consider where the child was habitually resident immediately before being removed in determining whether or not she should be returned. Children can be habitually resident in a country of which they are not a citizen and in a country where the family is living only temporarily.
A child is habitually resident where she has lived for some period of time with a “settled intention.” For instance, if the family is Canadian, but has been living in another country for several years due to the employment of either or both parents, and intends to eventually return to Canada, that other country would be the child’s habitual residence for the purpose of a Hague application if the child were wrongfully removed from it.
The habitual residence of a child is closely tied to the habitual residence of her primary caregiver.
States have found, depending on the facts, that a child may have no habitual residence or may have more than one habitual residence. These determinations are very fact and circumstance specific, with the result that the determination of habitual residence can be extremely difficult. Courts in Ontario generally determine a child’s habitual residence in relation to the intentions of the parents.
What are the exceptions?
As noted above, there are some situations that mean a child will not be returned to the jurisdiction where she was habitually resident, even if her removal was wrongful.
Consent or acquiescence:
If a parent agrees to the children being removed from the place of their habitual residence by the other parent or, later, acquiesces to their remaining in another jurisdiction, that parent may not be successful in having the children returned under the Hague Convention. Consent or acquiescence will not be found simply because the parent has delayed in starting a proceeding, but women are nonetheless strongly encouraged to begin a Hague application as soon as possible and, certainly, within the one-year limitation period.
The onus rests with the parent who has removed the children to prove, on a balance of probabilities, that the other parent consented or acquiesced.
A woman whose abusive partner is attempting to establish that she has consented or acquiesced should be prepared to produce strong evidence, such as any tactics used by the removing parent that could have tricked her into thinking, for instance, that he was taking the children only for a short period of time, or any dishonest communications from the removing parent about his intentions to return to the country with the children.
Grave risk of physical or psychological harm or intolerable situation:
Of greatest interest to us is the role that violence against the child’s mother can play in establishing that this exception should be considered by the state being asked to return the child.
There are, now, a number of cases in Ontario involving women who have fled another jurisdiction with their child and then alleged violence as the basis for a claim that the child would face a grave risk of physical or psychological harm or would be placed in an intolerable situation if returned to the child’s place of habitual residence. Helpful evidence for a mother in this situation could include:
- Demonstration of long-term and ongoing abuse
- Increasing severity of abuse
- Post-separation abuse including stalking
- Criminal charges or convictions against the abuser
- Existing no-contact orders and any violations of those orders
- Indicators that the child has witnessed, been present for or been involved in any abuse directed at the mother
- Lack of response to her abuse from officials and institutions in the jurisdiction from which the mother has fled
A number of decisions in recent years have established that harm to the primary caregiver (i.e. the mother) is harm to the child, but the more of the above evidence the woman can present, the stronger her case will be. This is important because the onus of proof rests with her.
Is there a role for the Office of the Children’s Lawyer?
Courts are permitted to take the child’s wishes into account in determining whether or not she should be returned to the jurisdiction in which she was habitually resident.
The parent asking the court to consider the child’s wishes has the onus of establishing that this is appropriate, and must satisfy the court, among other things, that the child has not been influenced by the parent.
In some cases, children wrongfully removed to Ontario from another jurisdiction, have been represented by the Office of the Children’s Lawyer (OCL). For this to happen, the parent wanting to introduce the child’s wishes must request appointment of the OCL and the OCL needs to be able to commit to complete its work in a short timeframe, due to the requirements of the Convention.
Get legal help
Any woman in such a situation requires access to legal advice as soon as possible. If she is not able to pay for a lawyer herself and does not qualify for a legal aid certificate, perhaps she can seek a 2-hour advice certificate or find a lawyer who is prepared to take her case on a pro bono basis.
Ideally, the lawyer will have some experience with Hague Convention cases or, at a minimum, will have ready access to another lawyer who has.
The Hague Convention on Private International Law provides a great deal of information related to the Hague Convention, including the names of and information about the countries that have adopted the Convention, as well as contact information for their Central Authorities. This website also contains a Guide to Good Practice for countries dealing with international child abductions under the Convention.
The International Child Abduction Database contains leading cases involving the Convention from a number of countries, including Canada.
The Ministry of the Attorney General provides information about abductions within Canada and the Ontario’s Central Authority and the services it provides.
The Canadian Government’s publication “International Child Abduction: A Guidebook for Left-Behind Parents” contains a great deal of detailed, very useful information about the use of the Hague Convention as well as other strategies for having children returned to Canada.
Many thanks to Mary-Jo Maur and Nicholas Bala for their paper “The Hague Convention: A Primer for Ontario Lawyers,” presented at the 2013 Law Society of Upper Canada Family Law Summit, which provided the basis for this FAQ.