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Lawyers Vancouver, MacLean Law

Vancouver BC Hague Abduction Lawyers deal with cases involving disputes children who may have been wrongfully removed from another country. The Hague Convention on Child Abduction does not apply to cases where a child is taken to a new province or territory in Canada as these disputes are governed by sections 61, 64 and 72-79 of the Family Law Act. Our wrongful child removal lawyers help you protect your child in cases where the child has been brought to or taken out of British Columbia or Alberta.

Vancouver BC Hague Abduction Lawyers Call 1 877 602 9900

Both the Hague and the Family Law Act follow the principle that it makes sense to decide issues related to child custody and parenting in the place where the best evidence to do so exists. The focus is on where the child’s habitual residence is in determining what country or province or territory is the most appropriate jurisdiction to decide issues regarding a child’s best interests. In today’s blog Lorne MacLean, QC and Robert McQueen of our team of Vancouver BC Hague Abduction Lawyers, briefly explore recent developments in how the exceptions against return based upon “grave risk of harm” and on when a child objects to the return to the country of habitual residence are now applied.

Hague Convention On Child Abduction Focuses On Prompt Return With Exceptions Call 1 877 602 9900

The Hague Convention (Article 1) aims to secure the prompt return of children wrongfully removed or retained to the place of their habitual residence:

  • Article 3(a) states it is in breach of rights of custody under the law of the place in which the child was habitually resident immediately before the removal or retention, and
  • HC Article 3(b) states at the time of removal or retention, those rights were actually exercised.
  • Article 12 states Hague Convention application should be started promptly and under best practices within 12 months of the removal or retention. See Kubera v. Kubera2010 BCCA 118.

Recent Cases Focus On Thorough Grave Risk Assessment Call 1 877 602 9900

Our senior Vancouver BC Hague Abduction Lawyers point out there are several exceptions to mandatory return under the Hague Convention including:

Under Article 13(b) if it is proven there would be Grave risk that the child’s return would expose her or him to physical or psychological harm or otherwise place the child in an intolerable situation. But how do a judge in BC and Vancouver BC Hague Abduction lawyers assess this risk?

In Zafar v. Saiyid, 2018 ONCA 352,  a more modern approach to risk assessment as part of a Hague Convention hearing was established even if it is held by the Court that the children were wrongfully removed from their place of habitual residence.  In Zafar, the Ontario Court of Appeal held that the trial judge hearing the Hague Convention return application cannot turn a blind eye to the physical and psychological well-being of children and leave it to the home jurisdiction in the face of a clear exception section based on a grave risk of harm to the child. The Court of Appeal unanimously held that it was an error for the application judge to not make a determination of the risk of harm. The court stated a thorough investigation of the grave risk of harm is needed and that if affidavit evidence was insufficient to determine the truth, then an oral hearing ought to have been considered by the judge.

This approach significantly expands the evidence that a Court must weigh in a Hague Convention return applications. We expect these 2 new cases will enable courts a more flexible child-focused approach in contrast to the past weight of law in Canada which narrowly and strictly construed this exception to preserve the integrity of the Convention to ensure that the objects of the Convention were met. The “grave risk of harm” exception that allows a court to refuse to return a child found to be wrongfully removed or retained if the person opposing the return raises this issue has historically been very narrowly and strictly construed.

SCC Places New Found Focus On Child Participation Call 1 877 602 9900

Another Article 13 exception comes into play when a child involved in a Hague Convention return dispute objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account his or her views. Participation and involvement of children in cases regarding their upbringing have been given specific protections in the  Convention on the Rights of the Child (CRC) participation rights which includes the right to be heard and to be taken seriously. Vancouver BC Hague Abduction Lawyers, psychologists, and judges now believe that the child’s participation in court proceedings will lead to better results for the child’s physical and psychological development.

In Balev the Supreme Court of Canada dealt with a new hybrid test to deciding habitual residence and a focus on taking into account the objections of a child to being returned to the home state in a Hague Convention application.

The Court decided the child’s wishes opposing return were an important exception to be considered in a Hauge dispute as follows:

Article 13(2) is an exception to the general rule that a wrongfully removed or retained child must be returned to his or her country of habitual residence, but it should not be read so broadly that it erodes the general rule.

The application judge’s discretion to refuse to return the child to the country of habitual residence arises only if the party opposing return establishes that:

(1) the child has reached an appropriate age and degree of maturity at which his or her views can be taken into account, and (2) the child objects to return.

Determining sufficient age and maturity in most cases is simply a matter of inference from the child’s demeanor, testimony and circumstances. The child’s objection should also be assessed in a straightforward fashion — without the imposition of formal conditions or requirements not set out in the text of the Hague Convention. In most cases, the object of Article 13(2) can be achieved by a single process in which the judge decides if the child possesses sufficient age and maturity to make his or her evidence useful, decides if the child objects to return, and, if so, exercises judicial discretion as to whether to return the child.

In the 2018 decision of C.C v D.R BCSC 291 a 15-year old’s wishes were respected despite the court finding the father and wrongfully taken the child from the USA to BC.

Vancouver BC Hague Abduction Lawyers Call 1 877 602 9900 

Our Vancouver BC Hague Abduction Lawyers are here to help you navigate the myriad of rules and exceptions if you have a child who is in a new location that the parents cannot agree is the best place for their child to thrive. Delay hurts you and your child, so pick up the phone so you can meet with one of our experienced Vancouver BC Hague Abduction Lawyers.