Parental abduction and the Hague Convention

Resolving an international child abduction is an emotional and challenging situation that requires urgent action and prompt assistance from an experienced family law lawyer. This is where international child abduction lawyers play a crucial role in navigating the legal process across jurisdictions.

In Canada, the most common form of child abduction is by a parent or guardian. International child abduction occurs when a child is unlawfully moved from one jurisdiction to another by a parent or guardian without legal authority or permission of a parent who has full or joint decision-making responsibility.

“Every year, hundreds of Canadian children are wrongfully taken from Canada or held in another country by abducting parents,” states the federal government in its guidebook for left-behind parents.

Although it is an emotionally charged area of law, taking swift action and speaking with a lawyer experienced with Hague matters can inform you of your options. It is crucial that your lawyer is experienced and prepared to drop everything to manage your case with urgency. International family law lawyers in abduction matters are often the most equipped to guide parents through the complexities of cross-border legal systems.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction — more commonly known as the Hague Convention — is a multilateral treaty that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.

If a child is in one of a hundred or so countries that are signatories to the Hague Convention, the left-behind parent may be able to apply to have the child returned. You may make an application to have your child returned to Canada under the Hague Convention if:

• The child is less than 16 years old

• The child habitually resided in Canada before being wrongfully taken to or retained in another country

• The Hague Convention applied between Canada and the country the child was taken to or retained in when abducted, and

• You had and were exercising your decision-making responsibility or parenting time when the child was taken.

It’s important to note that when a parent applies to have their child returned under the Hague Convention, this does not mean authorities in the other country will decide who should have decision-making responsibility and parenting time (also known as access). Instead, a hearing will determine if the child will be returned to the country of habitual residence so that the courts there can make decisions based on the best interests of the child.

Central Authorities

If a parent in Canada claims that their child has been abducted to the United States, they have to file a claim through the Central Authority. That paperwork then gets sent to the jurisdiction where the child is allegedly living, and the Central Authority in that country will start judicial proceedings. The two Central Authorities work together to bring about your child’s return or give you access to your child.

If the parent in the other country does not voluntarily return the child or an agreement cannot be reached, the next step is a court hearing that will decide whether the child should be returned to Canada.

Time is of the essence

Although speed is vital, this can be a lengthy process. For example, a recent Ottawa Citizen article details the story of a Canadian man who said his former partner took their 10-year-old daughter on vacation and did not return her to Canada as planned.

He tells the newspaper that he “immediately got in touch with officials and applied under the Hague Convention, but the legal process has stretched for more than three years even though Paraguay is a signatory country.”

In treaty countries, courts may refuse to order a child’s return if legal proceedings have not been started within a year of the abduction and if the child is settled in their new residence. However, if you quickly commence your application on an urgent basis, any delay in the court system will not be held against you.

Of course, a court may refuse to return a child under the Hague Convention for several reasons, but there are still other legal options you can take. International child abduction lawyers can help you explore these alternatives and take necessary action.

If a child is taken to a country not part of the Hague Convention, things become more complicated, and the outcome can be dire. For example, in the same Ottawa Citizen article, a woman tells the news outlet her two sons were abducted by their father during a 2015 visit to Lebanon, a non-treaty country. She says she has spoken to officials in both Lebanon and Canada and hired five lawyers over the years, but her children remain with the father. In complex cases like these, international family law lawyers in abduction matters are critical in pursuing every possible legal path.

Preventive measures

Typically, these cases happen when a parent has strong ties or connections in another jurisdiction. If you are concerned your former partner may attempt to abduct your child, there are some preventive steps you can take, including:

• Never releasing the child’s passport

• Ask your family lawyer about a non-removal order — a court order that says that one or both parents cannot take a child out of a certain area

• Add the child’s name to the Immigration, Refugees and Citizenship Canada passport lookout system.

If you would like legal advice to protect your rights and help ensure your child’s safe and immediate return, schedule a consultation with one of our experienced child protection lawyers.

Photo Credit: Unslash

Five benefits of settling your divorce outside of court

In a high-profile divorce case from several years ago, an Ontario couple spent four and a half years — and more than $2 million in legal and expert fees — in litigation before the court awarded the wife $10.6 million in spousal support, equalization payment and the proceeds of a life insurance policy.

When a marriage ends, people tend to adopt one of two mindsets: They either want to settle their divorce as quickly and painlessly as possible or they are primed for an epic battle. Those who are not vindictive usually want the most amicable resolution to salvage whatever decency exists between the former couple, especially when children are involved.

Frequently, the ones who come in with guns blazing, intent on getting their day in court, have fixed ideas about their rights and obligations in divorce, many of which are informed by anger and hurt.

While litigation is sometimes unavoidable, it’s almost always in the parties’ best interests to settle outside of court. It’s also important to note that the family judicial system is designed to help couples avoid court by resolving their differences through good-faith negotiations.

There are countless benefits to avoiding divorce litigation, but for the purposes of this post, I will highlight the top five, based on my more than 34 years of practice as a family law lawyer.

1. Less stress

If you’re in the middle of a divorce, you don’t need me to tell you how stressful the experience is. Even amicable splits are fraught with emotion. But a protracted divorce can exact a heavy toll on the parties’ emotional well-being.

The process can drag on for months — or years — effectively stalling spouses from moving forward with their lives. There’s also an added layer of stress that comes with the uncertainty around what a judge will decide for the family.

By contrast, couples who sort out their issues through mediation or collaborative negotiations usually find the process less stressful. It also helps to set the family up for success going forward by encouraging and enabling them to co-operate in resolving future disputes.

2. Lower legal costs (usually)

Litigation is an expensive process. Clients pay for the time a lawyer spends preparing their case for trial, and if their case is complex and involves expert testimony from business valuators, psychologists, social workers and the like, the expenses can add up quickly.

Most people underestimate the amount of time and effort it takes to prepare for litigation. Drafting court papers, collecting financial disclosure and co-ordinating other parties who may be involved are time-consuming undertakings that add to the cost of a case.

On top of that, the court imposes strict limits on the number of pages that can be included in conference briefs, which means lawyers need to spend time synthesizing the information so that a judge can easily glean the most important facts.

By contrast, a negotiated divorce settlement not only generates the best result for a family, it is often a more cost-effective road to resolution. Data from the Canadian Bar Association shows that settlements achieved through alternative dispute resolution serve clients’ best interests in about 90 per cent of cases, compared to around 30 per cent for litigation.

3. Control over the outcome

Asset division, parenting arrangements, child support and spousal support can all be negotiated through an alternative dispute resolution path, such as mediation, arbitration or collaborative negotiations.

People usually don’t recognize that when they ask a judge to decide the matters in dispute, they lose the ability to reach an agreement that will work best for their family. When you go to court, you’re essentially trusting a stranger to make the most important decisions for your family.

Family court judges are exceedingly busy, processing many cases every day. Each one comes with a small mountain of paperwork they must review to get up to speed on the case. While they do their best to understand the dynamics of your case, it is still just one person’s perception — and they could be getting it wrong.

4. Focus on the children’s best interests

Arguably, the most important reason to avoid a contentious divorce is your children.

Litigation creates a hostile environment that pits parents against each other. It’s easy to get caught up in the drama and forget that your children are also going through the most significant change in their lives.

Experts say that a child’s ability to recover from divorce depends to some degree on how parents handle the separation. When parents negotiate an agreement, it demonstrates to their children that they can co-operate in the midst of chaos, and they will have a much easier time adjusting to the changes that come from the divorce.

5. Faster resolution

The wheels of justice turn slowly, especially in COVID times when the courts are more backlogged than ever. Most clients are shocked to learn that getting to their first court date often takes six to eight months.

And long before a case ever gets to trial, spouses have to attend numerous mandatory settlement conferences in an attempt to help them resolve their dispute.

When negotiation won’t work

Of course, there are situations where a negotiated settlement will be unlikely, if not impossible. When one spouse is intent on getting more than their fair share of assets, is requesting unreasonable parenting arrangements or refuses to negotiate, it can stonewall any attempts to settle.

When one or both spouses have a high-conflict personality, a negotiated settlement can be difficult to achieve without highly skilled professional involvement. These types of cases inevitably involve prolonged court battles.

Spouses who can negotiate some or all the terms in their divorce will be in for a much smoother process than if one is determined to have their day in court from the outset.

If you are facing a separation or divorce and would like to understand your options, call us to schedule a consultation. We would be happy to help you.

When children need a legal advocate

Throughout the pandemic, Ontario family law courts have been inundated with cases of separated and divorced parents clashing over what’s best for their children. Judges have heard hundreds of cases with parents at odds over where their children should live and whether they should attend school in person or do online learning.

Most cases the courts heard over the past year involved disputes over parenting, reports The Lawyer’s Daily.

“Approximately 70 per cent of the 506 cases involved only a parenting dispute, and an additional five per cent involved both a parenting dispute and an economic dispute” over property, child support or spousal support, the online legal news outlet reports.

Often in high-conflict cases, it can be difficult for the court to determine what a child wants or needs. Mom says one thing; Dad claims the opposite. In these cases, one or both parents can ask the court to appoint a lawyer who will represent the child and determine their views and preferences. Every year in Ontario, the Office of the Children’s Lawyer (OCL) assists children in more than 10,000 cases by appointing a lawyer whose job is to act as counsel to a child.

This post will give readers insights into how the process works and why it’s an effective method for assessing a child’s viewpoint.

How the OCL works

The OCL typically gets involved in cases where a child is experiencing significant difficulties as a result of conflict within their family.

I’m a panel lawyer for the OCL and frequently represent children in cases where their parents are in conflict as well as in child protection cases involving the Children’s Aid Society. As counsel for the child, my role is to formulate a position as to their views and preferences on the issue in question, which will ultimately be articulated to the parties and the court.

A common scenario where a children’s lawyer can be helpful occurs when each parent claims the child has told them they want to live with them full time. It’s not unusual in divorce for kids to tell parents what they think they want to hear, but that’s often entirely different from what the child believes.

As their legal representative, my job is to get to the heart of the child’s views and preferences, which can be challenging because, in many cases, there has been a great deal of influence on their thinking by one or both parents. The process can take months or longer and involves multiple interviews with the child. It takes time to establish a safe space where they can express their truth. And they must voice consistent views over an extended period.

In child protection cases involving the Children’s Aid Society (CAS), the children’s lawyer acts solely for the child, not their parents or guardians or CAS. As in other matters, our job is to consider the child’s views and preferences, within the context of other relevant factors, and present that to the court.

Fact-finding mission

The questions I pose and how I ask them will look quite different for a six-year-old versus a teenager. Younger children tend to speak openly once they get comfortable, but it usually takes more time to build rapport with older kids.

In cases involving a dispute over where the child will live, it might seem like a good starting point to ask the child directly, “Who would you rather live with: Mom or Dad?” but that’s not effective. Instead, I’ll ask questions that help me better understand their comfort level in certain situations: “What do you enjoy doing most with Mom?” or “How many sleeps in a row are you comfy with at Dad’s place?”

I also review the child’s report cards and assess any special needs they may have. To make informed recommendations about a child’s future, it’s important to gather information from as many relevant sources as possible: the parents or caregivers, educators, doctors, mental health professionals and others. The information gleaned during these discussions helps in two ways: It informs the conversations I have with the child and it puts their views and preferences in context.

Understanding the child’s preferences

I’m currently representing a 14-year-old boy who’s experiencing such a high degree of pandemic-related anxiety that he doesn’t want to attend school in person. One parent supports his choice; the other is opposed.

My goal, in this case, is to clearly understand the boy’s views and preferences to see how we could craft a plan that keeps his anxiety at bay while making sure he’s getting a quality education and maintaining a social life.

These cases are tough but very rewarding. Any time you can encourage a frightened and anxious child to speak their truth, it’s time well spent.

Photo Credit: Freepik