The Supreme Court of Canada recently decided a case in which I appeared as the lawyer for the father, that has changed the way Hague Convention cases will be dealt with in Canadian courts. The decision in O.C.L. v Balev was released on April 20, 2018 and it is considered a ground-breaking departure from prior Canadian law on this subject.

This blog is intended primarily for the general public who might have an interest in this subject, either because they have or are experiencing a child abduction, might know someone who is or has experienced this, or just out of a general desire to expand their knowledge base.

The following two situations occur again and again around the world. When this happens, the left-behind parent is now faced with a new Canadian reality that turns their life upside down.

1.   Your children are missing and you don’t know what to do. After searching for them frantically you finally discover that they have been taken by your spouse to another country; to Canada. That is where your spouse’s parents live and they are all staying with them. What next?

2.   Your spouse tells you that he/she wants to visit their relatives in Canada with the children and will come back home to your country in a month. You provide a travel consent letter to permit your spouse to take the children for that period of time. The month passes and you are asked to agree to extend the stay for another month. At the end of the second month you are told they are not coming back. What do you do?

What can be done used to be much more straight-forward than it is now.

You can and should call the police in the country in which you reside and where the children lived with you. However, assuming they do not or cannot assist you, there is only one remedy available. You must take steps under international law and that law is only available to you in countries who have signed and adopted the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). Canada is a signatory to the Hague Convention.

These steps should be taken immediately. Too many people waste precious time trying to negotiate with the other parent and this creates delay. Delay that could later prove fatal to your quest to have your children returned to you. Commence the Hague process and at the same time try and negotiate a resolution.

The Hague Convention was created in order to assist parents in securing the prompt return of children who have been wrongfully removed from the country of their normal, or habitual residence, or wrongfully retained in a signatory country (like Canada). The fundamental idea is to return the children to the status quo they enjoyed before this event.

As the world has changed and evolved, so has the Hague Convention. It was established in 1980 and signed in 1983 with the particular purpose of making the abduction of children difficult by creating a cooperative multi-state mechanism to have these children promptly returned to their home country and the left-behind parent. It also eliminated the ability of the abducting parent to forum shop a country where they could take the children and then invoke that countries’ legal system to secure a court order granting them custody and the right to stay where they were.

The first step in either of the above scenarios is to contact the Hague Convention Central Authority in the country where you live and to which you wish your children to be returned. You will complete a detailed application setting out the circumstances of how your children were removed from you or how they are being retained, and all of the information you have about where your children are residing.

If the Central Authority agrees that your children have been wrongfully removed or retained, they will contact the Central Authority in Canada who will immediately do two things:

1.   They will write to the parent holding the children and ask them to voluntarily return them to your country, and

2.   They will authorize you to commence a proceeding in Canada under the Hague Convention to seek a court order for the return of the children.

One of the difficulties for parents from a country outside of Canada applying the Hague Convention in Canada is that this is a civil proceeding and is not therefore underwritten by the government. You must retain and pay your own lawyer to pursue a court order for the return of the children and that can become extremely expensive.

The Hague Convention process is supposed to be a speedy process. Courts which are normally backlogged with pending cases are required to ‘clear the decks’ and give priority to Hague Convention hearings. In fact, this was on of the directives of the Supreme Court of Canada in the Balev decision.

It is also a huge asset to make certain that the lawyer you hire is very familiar with this type of proceeding and has the background and experience to move your case through the courts without delay. Too many cases are badly handled and even wrongly handled which only makes it more difficult, if not impossible, to get the return order you are seeking. Too often I am retained to clean up a mess created by another lawyer who did not have any idea about how to conduct a Hague Convention proceeding.

Since the creation of the Hague Convention there has been increasing emphasis placed on the wishes of the children themselves and less emphasis placed on the intention of the parents. In this decision of the Supreme Court of Canada in Office of the Children’s Lawyer v Balev, the focus in Canada has shifted away from parental intention onto a more child-focused examination centering on the rights and intentions of the child. This is known as the ‘hybrid approach’ which is also applied in the courts of the European Union, New Zealand, Australia, and some states in the United States.

In Hague Convention cases now proceeding in Canadian courts, the judges must look at the child’s views and preferences, the situation of the child, and as well the intentions and circumstances of the parents. No one factor dominates the analysis of habitual residence and this requires a court to evaluate all of the relevant factors placed before it.

This decision has created a great deal of uncertainty and it will take considerable time for the court system in Canada to define and refine the guidelines to be followed by Canadian judges in Hague Convention cases. There are many pitfalls created by the Balev decision that the Canadian judicial system can stumble into and which will further complicate how and why one case will end successfully and another, but similar case, will not.

Prior to Balev there was some certainty if you signed a consent to permit your spouse to take your children to Canada for a limited time and for a specific purpose. If the time limited consent expired and your children were not returned to you, the breach of the consent was a solid ground upon which you could move for the prompt return of your children. The Supreme Court of Canada has effectively taken away the ability to rely upon a breach of this written consent which renders these consents somewhat useless. The hybrid approach also allows the withholding parent an opportunity to manipulate and exploit the system with the objective of delaying the children’s return and the proceeding itself. That is one reason why it is so very important to move quickly.

The opportunity for a parent to influence their children while they wait to be located or wait for a hearing to take place has increased. With more weight now placed on the views and preferences of the children, parental influence becomes an even greater danger. Children are adaptable and susceptible to influence. They are sent on trips to have new experiences. They are sent on educational exchanges with the hope and expectation that they will bond with their new environment, have wonderful new experiences, and make new friends. It is naïve to believe that they will not be influenced by a withholding parent who deliberately sets out to make life in the new country irresistible.

The Supreme Court of Canada has opened a door that did not need to be opened. The system that was in place before the Balev decision worked efficiently to return children to countries whose own judicial systems could competently determine issues of custody and access. The new ‘hybrid approach’ will not only create uncertainty, but it further deteriorates and, in some respects, ignores the rights of the left-behind parent to their children.

This will just encourage people to wrongfully remove and wrongfully retain their children in Canada in the expectation that Canadian courts will now ignore their wrongdoing while focusing on the wishes of the children.

Steven M Bookman is an internationally recognized lawyer practicing law in Toronto, Ontario, Canada with the law firm of Bookman Law PC. Steven can be reached by email at [email protected]

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