Enforcing child custody orders in non-Hague countries is difficult

If a parent takes a child to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, it could be very difficult for the other parent to bring the youth back to Canada, says Toronto family lawyer Julia Tremain.

“It’s almost impossible to get children returned from a non-Hague country, as there is no way to legally enforce a custody order in a country that is not a signatory to the convention,” she says.

Tremain, partner with Waddell Phillips Professional Corporation, explains that the 1980 agreement aims to prevent kids from being taken from one country to another without the permission of both parents. The Hague Conference currently has 83 members, including 82 states and one regional economic integration organization — the 28 member countries of the European Union.

One large country that is not a signatory to the convention is India, and Tremain points to an Ontario Court of Appeal case that illustrates the problem of enforcing a Canadian custody order there.

According to court documents, a mother moved with her son from Canada to India in 2013 and subsequently brought petitions for divorce and custody there. The next year, an Ontario judge ordered that she return the child to Ontario and that the father be granted temporary custody, but the mother refused to comply.

In 2018, the judgment reads, the husband brought a motion to have the mother found in contempt of the order. The motion judge found that the child’s habitual residence was Ontario and so proceeded on the basis that Ontario courts had jurisdiction to deal with this matter.

The judge did not find her in contempt but ordered she surrender any passports she held until she returned the child to Ontario, and also granted the father sole custody, the judgment reads. The mother appealed the motion judge’s order on the grounds that the court erred in finding that Ontario had jurisdiction, and she also disputed the custody order.

The appeal court sided with her, Tremain says.

The key reason for the decision was that a “technical legal argument,” arising from the fact that the father participated in legal proceedings in India, which indicated that he accepted the Indian court had jurisdiction in this case, she says.

According to court documents, the father filed a counter-petition in India to the mother’s petition for divorce, invoking s. 6 of the Hindu Minority and Guardianship Act, which he claimed “clearly lays down that the guardian of [the] Hindu minor in respect of the minor’s person … is the father.”

The Ontario appeal court ruled that “by seeking a final order of custody on the basis of Indian law in the divorce proceeding in India, the father has attorned to the courts in India. The proceedings in India are well underway. On that basis, we conclude the Ontario court should have declined jurisdiction.”

“If the father had not responded to the courts in India, it would have been interesting to see if there may have been a different result in the Ontario appeal court decision,” Tremain says. “This case shows how challenging it can be when children are taken out of Canada to a country that is not a Hague Convention signatory.“Parents are left with no other options if this happens unless they can get the kids to a country that is a Hague signatory, at which point they can trigger the return mechanism,” she says.

‘DIFFERENT VIEWS ABOUT THE RIGHTS OF FATHERS AND MOTHERS’

Tremain says the problem of bringing children back to Canada is exacerbated in some Middle Eastern countries “that have different views about the rights of fathers and mothers.”

Any time one parent travels with a child, she says there is a chance they may not return, even if they are going to a country that has signed the convention, given how easy it is to travel to another country.

“The parent left at home can ask for proof of return flights, itineraries and contact information, but it’s always going to be a bit of a leap of faith,” she says.