Enforcing child custody orders abroad can be challenging

By Tony Poland, LegalMatters Staff • Regaining custody if your ex abducts your children can be difficult but it is especially challenging if it happens abroad, says Toronto family lawyer A. Julia P. Tremain.

“If a parent takes a child to a country that is not part of the Hague Convention on the Civil Aspects of International Child Abduction, the chances of having that child returned can be remote,” says Tremain, a partner with Waddell Phillips Professional Corporation. “If the country is not a signatory to the Convention, it is virtually impossible to enforce a Canadian custody order.”

According to the Government of Canada, international child abductions “are difficult and complex situations.”

“Unfortunately, they are common. Every year, Canadian children are wrongfully taken from Canada or held in another country by abducting parents,” the government states. “Child abduction is a criminal offence in Canada, but when a parent abducts a child to another country, they are subject to the laws and procedures of the country they are in, which may be very different from those of Canada.

Protections may not be available

“The protections the other parent might expect from Canadian laws, legal systems and law enforcement agencies may not be available.”

Tremain says there can be many moving parts when dealing with a non-Hague Convention case.

“First, there is the law used to enforce the original custody and access order,” she says.

“The issue is further complicated by the laws in the country where the child was taken,” Tremain tells LegalMattersCanada.ca. “If a parental abduction occurs outside of Canada, you will have to deal with legislation that may not align with our laws.

“Often there is no middle ground when it comes to this issue,” she adds. “Either the child stays or is returned.”

The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty that came into force in 1983 and provides a means to return a child who was wrongfully taken from one member country to another.

Different and complex scenarios

While the Convention can be an effective legal tool, it can present different and complex scenarios, Tremain says. These can include:

• If a child is ordinarily a resident of Canada and taken to a Hague country – for example, Denmark ­– the hearing would be in Denmark. A court in that country would apply provisions of the treaty and return the child to Canada unless evidence shows that one of the exceptions under the Hague applies. Under Articles 12 and 13 of the Convention, this can include if a child has been wrongly removed in breach of rights of custody or if the child has reached an age and maturity where their views can be considered and they object to being returned to their habitual residence.
• If a child is ordinarily a resident of a Hague signatory country, such as Denmark, and is wrongfully retained in Canada, the hearing would be in Canada. Provisions in the treaty would apply and the child would be returned to Denmark unless the Canadian court determined that an exception under Articles 12 and 13 of the Hague applies.

In the following scenarios, the Hague Convention would not apply:

• If a child is ordinarily a resident in Canada and taken to a non-Hague country – for example, Oman ­– there is very little recourse, even if there are Canadian court orders in place dealing with the child. That is because there is no guarantee that Canadian court orders would be recognized by Oman. As well, Oman may have a completely different regime for determining custody. Because the Hague would not apply there is no mechanism for enforcing a Canadian court order.
• If a child is ordinarily a resident of a non-signatory country such as Oman and brought to Canada, either legally or illegally, a Canadian court would have to determine whether it has jurisdiction to make decisions about the child. If the case is heard in Ontario, the Court would apply the Children’s Law Reform Act to determine jurisdiction.

There are exceptions to the Convention

Tremain says under the Convention, some exceptions may allow an abducting parent to keep the child with them, such as if the child is in danger of physical or emotional harm at the hands of the other parent.

However, it is not unusual for some parents to try to bend the rules of the Convention to suit their needs, Tremain says.

“What happens is people will remove a child wrongfully then try to use one of the exceptions to keep the child,” she says. “Sometimes they succeed if they have a good reason. But the courts are very cautious about this. They require plenty of evidence that the exception applies because judges don’t want to reward parents for wrongdoing.”

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It should also be noted that just because a country is a signatory to the Convention it doesn’t mean that its laws will align with those in Canada, Tremain says.

“There can also be a language barrier,” she says. “Getting information from some countries can be difficult especially if they have a different language. Intricacies of the law can get lost in translation.

‘Courts may be reluctant to relinquish jurisdiction’

“Foreign courts may also be reluctant to relinquish jurisdiction,” Tremain adds. “They see themselves as the ones who should be in charge.”

What makes foreign parental abductions so problematic is how quickly and easily they can happen, she says.

Parents have the right to spend time with their children after a divorce unless there is an overriding factor prohibiting contact, says Tremain. Parents typically also have the right to take their children on vacation, she says, and that is when problems can arise.

“A parent could tell their ex that they are taking the child to London, England.  But once they are there, they can fly to a non-Hague country,” says Tremain. “If a parent wanted to abduct their children, it can be easy enough to do. Meanwhile, the parent in Ontario wouldn’t even know what was happening until their children failed to return at the end of the vacation.”

Ways to discourage foreign abductions

She says parents can set out international travel conditions in their parenting or custody order and some even go as far as having the other parent put down a security deposit that is held in trust to discourage foreign abductions.

“If the other parent doesn’t return with the children, that would at least give the other parent a means to pay the legal fees to attempt to get them back,” Tremain says.

She says if a child has been taken it is important to act quickly.

“If the parent sits on their hands for years before deciding to act that will likely present a problem. By then the child will be established in the new country,” Tremain says. “Sometimes a parent will be unaware of where the child is, making it difficult to do anything. And that would be part of the evidence.

“But if they do know where the child is and they have exchanged emails, they know the child’s address, but they have done nothing to try resolve the issue, that may be a problem for them,” she adds. “They must have evidence to show that they were doing everything they could.”

Federal government offers a guide for parents

The federal government offers a guide for parents dealing with international abductions. If your child is in danger of being abducted or kept outside the country you should contact:

• Your lawyer.
• The Passport Program.
• Local police.
• Consular Services at Global Affairs Canada.

If your child is missing and you believe the other parent is involved you should:

• Contact the other parent or friends to confirm the location and safety of your child.
• Look for signs that the other parent has abducted your child.
• Call local police.