A major concern for the clients of Toronto family lawyers is the real possibility that the other parent will take the child out of Canada and never return. If the other parent in your case has significant ties to another jurisdiction, you may share this concern.
The Hague Convention on Child Abduction is an agreement between over 100 countries that Toronto Divorce Lawyers will refer to in cases of international child abduction. The Hague Convention exists to protect children from being removed from the country where they ordinarily reside (their “habitual residence”) by one parent without the other parents’ consent. The Hague Convention also assists with the prompt return of children to their country of habitual residence. As the best family lawyers in Toronto will tell you, the idea behind The Hague Convention is that custody and visitation matters are properly decided by the court in the country of the child’s habitual residence. The International court will not involve itself in the custody and visitation issues but will decide whether the child was illegally abducted from their habitual residence and should therefore be returned.
The Hague Convention is an important tool for Toronto family lawyers as a Canadian custody order may not be recognized by other countries. Having a Canadian custody order is certainly helpful in determining the child’s habitual residence, and is often requested by the courts of the other signatories to The Hague Convention, but it is not a requirement under The Hague Convention.
In order to obtain the return of a child through The Hague Convention, a parent (with the assistance of the best divorce lawyers in Toronto) must demonstrate that Canada is the child’s habitual residence, that the removal of the child was illegal and in violation of the parent’s custodial rights, and that the child is under the age of 16.
The child’s habitual residence can be a difficult thing to prove so you may need the assistance of Toronto Divorce Lawyers. Consider the following fact situation (which was recently before the Supreme Court of Canada):
A family of Canadian citizens is living in Germany. The Mother and the Children return to Canada so that the Children can experience the Canadian school system. The Father consents to this travel for a period of 16 months. The Father later revokes his consent, fearing the Mother does not intend to return the Children to Germany. The Mother never returned the Children to Germany.
Experienced Toronto family lawyers will be asking, what is the habitual residence of the Children? The family was living happily in Germany for many years. The Father agreed to allow the Children to live in Canada for a specific period of time. He later revoked his consent. The Mother refused to return to Germany with the Children, even after the 16 months had expired. Experienced Toronto divorce lawyers will be asking: Are the Children now “habitually residence” in Canada? Unfortunately, the term Habitual residence” is not defined in The Hague Convention and has therefore been the subject of great debate.
The Supreme Court of Canada in this case looked at the following facts:
- The children’s links to Germany and overall circumstances
- The circumstances of the children’s move from Germany to Canada
- The children’s links to Canada and overall circumstances
As the best family lawyers in Toronto will know, of importance was the duration, regularity, conditions, and reasons for the children’s stay, as well as the children’s nationality.
In this case, the Supreme Court of Canada found that the children were “habitually resident” in Germany and should have been returned to Germany. Interestingly, while this case was moving through the Canadian Court system, a German court granted the Mother custody and allowed the Mother and Children to return to Ontario.
The full case can be found here.
The best divorce lawyers in Toronto understand that in some circumstances, a court may deny the return of an abducted child under the Hague Convention. These circumstances include, but are not limited to, the following:
- the child’s return would pose a risk to the child (such as the child would be subject to physical or mental harm)
- the child objects to being returned and is of an age and maturity level at which the court will take the child’s views into account
- more than one year has passed since the wrongful removal of the child
- the party seeking the return of the child consented to the removal or otherwise acquiesced to the child’s removal
These are all very important factors to consider and to discuss with your Toronto family lawyers or your Toronto divorce lawyers if you are involved in a case of international child abduction.
If your child has been abducted by their other parent, then you should speak with the best family lawyers in Toronto without delay. Only the best divorce lawyers in Toronto will be able to help you navigate the complex issue of international child abduction.
At GOLDSTEIN Divorce & Family Law Group, we have some of the best family lawyers in Toronto. At the same time, we offer affordable divorce lawyers and even legal aid lawyers. No matter what your budget, we would be pleased to assist you with your case. Please contact us at 416-519-5552 or at info@amglaw.ca and one of our Toronto Family Lawyers will get back to you immediately. Also feel free to browse our website for other useful information at www.amglaw.ca.