Parental child abduction – Child abduction by a parent is a situation when one parent takes a child somewhere without the other parent’s knowledge or consent — are not uncommon. Not always this is a problem or, particularly, a legal problem, but sometimes it is. Then we are talking of child abduction.
Say, you are already separated or divorced, and there is a Court order specifying child custody and access arrangements. Yet, contrary to that order your ex has taken the child somewhere and refuses to bring him (her) back to you.
First of all, it is important to take into account the child’s age and the nature of the situation: when your 16-year-old daughter wants to stay with the other parent for a couple more days during the vacation time, it one thing. But when your ex takes your 2-year-old baby somewhere and disappears, it’s another.
Having assessed how serious the situation is, having tried to contact your ex and to ask for explanations, having tried to reason with your ex without success on your own or with other relatives or friends involved, you might think of a legal action.
If your child is still in Canada, you can contact police. You’ll need a copy of the Court order to show that your rights are being violated by the other parent.
You can also contact a lawyer to do the paperwork and eventually to go to Court for another order, modifying custody and access rights to add limitations on the other parent’s rights, as well as with some additional claims. For example, you might require that the other parent’s meetings with the child are supervised by a social worker or a family member.
If your child has left Canada, it becomes more complicated. The Hague Convention comes into play (but not all the countries have signed it). You will have to bring evidence that your child’s residence (home) is in Canada, that you are the custodial parent, and that your child is under 16 years old. With those documents at hand, you can apply to the Court of the country where your child is now to have him (her) returned.
If, though, the country where your child is now has not signed the Hague Convention, local laws could go against your current custody and access arrangements. Therefore, when you apply to that foreign Court for an order to return your child, the process might become much more difficult, lengthy, expensive and complicated. (For details please see here: https://travel.gc.ca/docs/publications/int_child_abduct-en.pdf).
Having spoken of the potential problems and complications, it would be only natural to recommend preventive measures. First of all, you can apply to the Court in Canada for an order limiting the other parent’s ability to take your child abroad (remember that your custody rights should also be confirmed by a Court order). If you have such a judgement, communicate it to the CBSA.
Second, make it sure that your child’s passport and birth certificate are in a safe place. You can even keep them with your lawyer.
Third, if you are the parent taking your child for vacation, on a trip or abroad, be sure to have all the paperwork done properly. More information is available here: https://travel.gc.ca/travelling/children/faq,
here: https://travel.gc.ca/docs/publications/child-travel-en.pdf
and here: https://travel.gc.ca/travelling/children/children-travel
If there is no agreement between parents about the trip, it’s wise to apply for a Court authorization in advance.
In any situation, remember that the best interest of the child is the major concern, and it is usually in the best interest of the child that the parents find some common ground and a peaceful solution.
Allen Madelin is recognized among the best family law firms in Montreal. We offer first consultation to answer your questions and to help choosing an optimal strategy to proceed at $125. You can contact us at 514-904-4017 or via email: [email protected]. Don’t hesitate to contact us, we’ll explain to you what to do next.
