Child Abduction is against the law. It usually occurs when one parent wants to alienate the child from the other parent, is afraid for the child’s safety or simply wants to move with the children without following proper court procedure.

When your child is abducted and if you know where he/she has been taken to, you need to first figure out whether the country the child has been abducted to is a signatory to the Hague Convention. There are currently 93 countries which have signed with the Hague Convention. The Hague Convention attempts to return the abducted child to his or her ‘habitual residence’ in an expedient manner.

In other words, if your child is abducted to for example, United States, which is a Hague Signatory, you will need to immediately commence Hague proceedings in the U.S. The courts in the U.S. must make an Order to return your child to Canada if they determine that your child has been wrongfully removed and there is little or no risk of harm if he/she is returned to Canada. If an Order is made for the return of your child, the police and all authorities will assist to return your child to his/her habitual residence which would be in Canada.

If your child has been taken to a country that is not a Hague Signatory, your job will be more difficult. You will need to commence custody proceedings in the country your child is currently and ask the court to order for your child to return to Canada. Because Hague doesn’t apply, the country will need to use its own laws to determine if your child should be returned to Canada.

Please note however that in both above noted situations, the more you wait and not do anything, the higher the chance of these courts determining that your child’s habitual residence may have been changed to the country where she/he has been abducted to due to the passage of time and the best interests of your child who needs stability in his or her life.

Our BC Family Law also provides the following test for determining what a ‘habitual residence’ is:

  1. For the purposes of this Division, a child is habitually resident in the place where the child most recently resided
    1. with his or her parents,
    2. if the parents are living separate and apart, with one parent
      1. under an agreement
      2. with the implied consent of the other parent, or
      3. under an order of a court or tribunal, or
    3. with a person other than a parent on a permanent basis for a significant period of time.
  2. The removal or withholding of a child without the consent of a guardian does not affect the child’s habitual residence unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extraprovincial tribunal.

Child Abduction is an extremely complicated area of family law. Contact our award winning law firm for a consultation regarding your unique case at 604-974-9529 or email info@ylaw.ca

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