Child abduction cases are, unfortunately, a factor to consider following a separation or divorce, particularly when relations between the parents are acrimonious. Family law lawyers are routinely consulted by parents who have had a child taken to another country or who have been accused of abduction. Child abduction cases, particularly across international borders, are complex and extremely time-sensitive. It is vital to retain an international family lawyer who has an advanced understanding of the international child abduction process to ensure urgent matters are attended to properly right from the start.
At Boulby Weinberg LLP in Toronto, we are passionate defenders of children’s rights and the protection of their best interests. Our partners, Sarah Boulby and Oren Weinberg are each highly regarded internationally as renowned family law practitioners. They are both Fellows of the prestigious International Academy of Family Lawyers (IAFL), a “worldwide association of practising lawyers who are recognized by their peers as the most experienced and skilled family law specialists in their respective countries.” As a result, our firm is one of a select few in Canada experienced with assisting families with international child abduction cases.
When managing international child abduction cases, courts must balance the interests of both the parents and the children involved. In Canada, the balance has shifted in favour of a more nuanced response to children’s best interests and their expressed wishes. This evolution of child abduction law presents new challenges for family lawyers in Ontario, particularly those who do not have a full appreciation of how to obtain and use children’s evidence in international cases.
Once a child has been abducted to a foreign jurisdiction, the next steps will largely depend on whether the other country is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention” or “Hague Convention“). There are currently 99 countries that are signatories to this Convention, including Canada, the USA, Hong Kong, Japan, Australia, and many parts of Europe and South America. If the other jurisdiction at issue is also on the list of signatories, then the Convention will apply. If not, a different approach will be required.
There are strict timelines in place when negotiating a child abduction case under the Convention. After a year has passed since the alleged abduction, a court will be more inclined to take into consideration the degree to which the child has acclimated to their new circumstances. While this may seem unfair to the parent, it is in keeping with focusing on the best interests of the child, and what is best for their well-being and ongoing development.
The first step to take if a child has been wrongfully removed to a foreign jurisdiction is to attempt to negotiate the child’s return directly with the other parent and/or their legal representative. If this fails, the next step is to bring an application under the Convention for the child’s return. In order to qualify for such an application, the following conditions must be met:
The process is complex; Hague Convention applications are managed by a Central Authority in each country. These Authorities work together to facilitate the matter, in a variety of ways, including:
As your lawyers, we work in conjunction with the Central Authorities in both jurisdictions and represent you in court to ensure the matter is moving along as it should and to ensure your interests are properly represented. If necessary, we have an extensive network of local legal experts across the globe whom we can engage to act as a local representative.
Child abduction cases involving non-signatory states are much more difficult by nature. Your efforts to recover your child will depend in large part on the receptivity, or lack thereof, of the state to which the child has been taken. That state may not recognize parental child abduction as a crime, may not have courts that are prepared to respect or recognize Canadian orders, or lack willingness or ability to find and protect the children.
Virtually no jurisdiction outside Ontario has as expansive a definition of parentage, so a first hurdle may be that you are not recognized as a parent in the foreign state. As a first step, it is helpful to try to locate a reputable family lawyer in that jurisdiction in order to determine what the legal framework is and the most effective remedies available in that jurisdiction. At Boulby Weinberg LLP, our extensive experience in international family matters and our professional recognitions mean we have established relationships with foreign legal experts in several jurisdictions. This makes us uniquely qualified to find a workable solution to bring your child home.
Nothing can make a parent feel more helpless than having a child taken away to, or held in, a foreign jurisdiction. At Boulby Weinberg LLP, our family lawyers are uniquely experienced and knowledgeable in resolving international abduction cases and have the international influence and know-how to do so expeditiously. Both of our partners are renowned for their understanding and experience in international family matters. Their membership in IAFL means our firm has an extensive network of international experts at our disposal to assist us with complex cross-border matters when necessary. We appreciate the time constraints involved in these cases and will get to work on your matter with the urgency it demands. Please reach out to us as soon as possible online or call us at 647-494-0113 ext. 102.
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Toronto, ON M4Y 1Z9
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