Canada is a ratifying member of the Convention on the Civil Aspects of International Child Abduction ("The Convention"). The Convention is designed to deal with an increasing international problem - abduction of children by a parent. The Convention’s intent is to return parties to the status quo prior to the child’s unlawful removal from her country of habitual residence so that any custody and access issues between the parties can be determined according to the law of that jurisdiction. The Convention is based on the presumption that, save in exceptional circumstances, the wrongful removal or retention of a child across international boundaries is not in the interests of the child.
The removal or retention of a child is considered "wrongful" where:
If the child has resided in the contracting state for less than a year from the date of unlawful removal or retention commenced, then a judicial or administrative authority shall order the return of the child forthwith unless, under Arts. 13(a) and (b):
According to Article 13, the judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
If the child has resided for more than a year in Ontario, then the child should also be ordered returned unless it is demonstrated that the child is now settled in its new environment.
If your child’s country of habitual residence is not a
signatory to the Convention, the process and test is different, but an application or
defence may still be brought under the Children’s Law Reform Act, some of the
relevant sections for an application being s.22, s.25, and s.41 and the defences
being s.22, s.23, s.42 and s.43.
If the jurisdiction disputes in your case relate to a divorce,
property, or support, an application to the Court to assert or decline jurisdiction may
also be brought applying the Family Law Act, the Divorce Act, or the common law,
If you are seeking to bring or defend an application under the Hague Convention, the
Children’s Law Reform Act, or are seeking to deal with other jurisdiction issues, contact
email@example.com. These issues are threshold issues that generally must be
determined at the outset of the litigation and thus it is important to act quickly.
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