BC International Child Abduction Lawyers know that with the ever increasing number of people who are choosing to make Canada their new home, our BC International Child Abduction Lawyers are regularly called on to handle cases where allegations have been made of International Child Abduction. In cases such as this, our BC International Child Abduction Lawyers know that it is vital that you act quickly and have family law specialist advice. Our BC International Child Abduction Lawyers are here to help.
Call Vancouver’s top rated family law firm today to find out your rights and obligations at 604-602-9000.
BC International Child Abduction Lawyers Are Asked: What is International Child Abduction?
MacLean Law’s BC International Child Abduction Lawyers, want you to know that Canada is a signatory to the Hague Convention on the Civil Aspects of International Abduction. The Hague convention is an agreement between a number of countries in order to expedite the return of a child internationally abducted by a parent from one country to another. There are many countries that are signed up to the Hague Convention – far too many to list here but they include the United States of America and the United Kingdom.
BC International Child Abduction Lawyers warn that under the Hague Convention, the removal or retention of a child is considered wrongful if it is in breach of rights of custody under the law of the country the child was habitually resident in immediately before the removal or retention, and those custody rights were actually exercised. The relevant considerations are the actions and intentions of the parties, as well as the situations and lifestyle of the child, which reveal whether the intention is that the child remain resident in the specified state for the foreseeable future. An example of this may be for example if you take a child overseas on a planned holiday with the consent of the other parent but decide not to return and stay there. All cases under the Hague Convention are fact specific so it is vital that you obtain specialist advice from our International Child Abduction Lawyers.
Our BC International Child Abduction Lawyers reviewed and like the analysis in the recent case of S.M.B. v A.J.M 2016 BSCS 811, the Supreme Court of British Columbia considered an application by a father for the return of his children to Spain. The facts can be summarized briefly as follows:
- The parties began their relationship in Spain in 2000 where the father was working and residing and the mother was vacationing. They immediately began living together.
- The parties moved to Amsterdam and their first child was born in 2002. The parties married shortly after.
- In 2005, the parties relocated to Spain where their second child was born.
- In 2012, the father was arrested and charged with a criminal offence and imprisoned for three years. The father was imprisoned in Denmark, which left the mother and the children in Spain with no means of supporting themselves.
- The mother decided that it would be in the family’s best interests for her and the children to move to British Columbia. The father consented to the children moving to British Columbia for the duration of his imprisonment and signed a form which said that he authorized the mother to take the children to Canada from June 2013 until his release date.
- The father was released from prison in August 2014 but the children were not returned to Spain.
- After some discussions between the parties, the mother confirmed her position that she was not going to return the children to Spain and subsequently commenced proceedings in British Columbia for primary custody and guardianship.
- The father subsequently made an application under the Hague Convention for the return of the children to Spain.
As part of its decision making, the Judge narrowed the issues to consider to four fundamental questions, namely:
- Did the parents have a mutually settled intention to change the children’s habitual residence from Spain to Canada?
- On what date did the mother wrongfully retain the children?
- Were the children settled in their new environment?
- Do any of the exceptions outlined under Article 13 apply?
The Judge ultimately found that in relation to the first question, that the father had only given his conditional consent for the children to move to Canada for the duration of his imprisonment. The Judge found that there was no settled intention between the parties to abandon Spain as the children’s habitual residence and acquire a new habitual residence in Canada. Having found that there was no settled intention, the Judge went on to consider the answer to the second question in respect of when the wrongful retention took place. Based on the authorization that the father had given, the date the wrongful retention took place was on the date of his release. In answering the third question, the Judge noted that the father had made his application more than one year after the date of wrongful retention and therefore the Judge was obliged to consider whether the children were settled in their new environment in Canada. After reviewing the extent the daily lives of the children including what activities they engaged in, how their schooling was progressing and their social and familial network, the Judge found that the children had become settled in British Columbia. In light of this decision, the Judge did not need to consider whether any of the exceptions applied under Article 13 in any detail but did comment that both children had made it clear that they did not wish to return to Spain and were happy in Canada. Ultimately, the Judge did not order the children to be returned to Spain as they were settled in their new lives in Canada.
Cases such as this highlight the importance of acting quickly and seeking legal advice. Any delay could result in the fatal flaw that undermines your case. As in this case, the father tried to negotiate with the mother but ultimately, that is what cost him. This case also highlights the problems that can occur when agreeing for your child to go overseas. It is important that you consult with our International Child Abduction Lawyers to ensure that the authorization you provide clearly outlines what you are agreeing to. Any ambiguity will ultimately undermine your case if the worst happens.
Our International Child Abduction Lawyers are experts in this fast paced and complex area of family law. Our International Child Abduction Lawyers have been recognized by Reunite International, a leading organization dealing with International Child Abduction, as experts in this area of law.
If you believe that your children have been removed or retained to a different country, or allegations have been made that you have removed or retained your children from another country, please call our International Child Abduction Lawyers on 604-602-9000 who will be able to guide you in the right direction.
