There are many families living in Canada with international roots. It’s not at all uncommon to have families where one parent is from one country and the other from somewhere else. When this can become problematic, however, is upon the breakdown of the marriage—especially when children are involved.
We see many cases where, upon separation, one spouse decides to travel with the children back to their home country, either to visit with family or for the purposes of a vacation. In many cases, the other spouse signs their consent to allow this international travel to take place. Where things become problematic, however, is when that spouse who is now in another country with the children, decides they want to stay (i.e. relocate permanently) in contravention of their custody/access rights.
At this point the parent who is back home in the children’s country of habitual residence may begin to panic. In order to bring the children back, this parent must now file a Hague Convention Application.
The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement used by lawyers to help protect children who are abducted or withheld wrongfully in a country other than that of their habitual residence. This application is only valid if the country of residence and the country where the children are being held are part of the Hague Convention, of which nearly 100 countries are members.
In order to file an application to the Hague Convention for the return of a child/children, the individual must contact an experienced lawyer. We at the Rogerson Law Group have years of experience in such cases, representing parties where children are wrongfully being detained in countries around the world as well as here in Canada.
How it works
As your lawyer, we will contact the central authority in the country where you are a habitual resident and assist you in filling out an application form which will be sent to an authority in the country where your children are being held. A lawyer in that country must also be enlisted to file the return order locally. We have partnerships with lawyers around the world to assist in this manner.
Why Consent is so Important
What many parents fail to realize is that they have a choice when providing consent for their child/children to travel with their spouse. Time limited consent allows one parent to travel with the children for a predetermined amount of time, (i.e. a few weeks for a vacation, a few months for the summer, etc.). When the limits of this consent are up, the parent must return with the children.
If you’re concerned about the nature of your relationship in any way, it’s always advisable to enlist the help of a lawyer when signing consent for travel. We will help ensure you’re providing time-limited consent and that it’s drafted in such a way that it prevents a Hague application – if one were to be required – from being refused.
*Article 13 of the Hague Convention states that if a parent has consented or acquiesced to the removal of the children from their country of habitual residence then the return order can be denied.
In some cases, the child’s country of habitual residence is not so clear cut. For example, many families split their time between more than one country, have property or close family in more than one country, and travel with their children extensively. In these cases, it’s often harder to rule where the children’s habitual residence is.
Office of the Children’s Lawyer v. Balev
In April 2018 the Supreme Court of Canada ruled in an international treaty about the meaning of the words: “courts should look at all relevant circumstances to determine a child’s ‘habitual residence’.” You can read more about this case here. Essentially, it determined that courts must look at the child’s complete situation (i.e. their integration into the community, proximity to family, etc.), not just the intentions of the parents, when making this decision.
Historically, where the parents decided the children would live on a permanent basis (the parents’ intentions) was held in the highest regard. With this new ruling, the courts must now apply a hybrid approach to interpret the circumstances around the children’s connection to each community (i.e. enrolled in school, access to friends, family, the children’s wishes, etc.) to determine their habitual residence.