Calgary Hague Child Abduction Return lawyers handle cases where Calgary and Alberta children are involved in wrongful abduction or retention disputes 1 877 602 9900. In Calgary Alberta family law cases, the best interests of the child are paramount. Particularly, safety concerns related to the child are of the utmost importance when deciding where a child will live if parents who have separated reside in different jurisdictions.
Calgary Hague Child Abduction Return Lawyers 1 877 602 9900
Our top-rated* Calgary Hague Child Abduction Return lawyers explain that in cases where one parent is withholding a child from the other parent and the parent without access to the child brings a court application for the return of the child, there are a number of factors which may be considered by the judge before whom the application is brought. Oftentimes, counsel will be appointed for the child to represent the child’s best interests and to advocate on behalf of the child.
One relevant factor is the age and maturity of the child/youth. Calgary Hague Child Abduction Return lawyers know that as children get older, their views are given greater consideration as to where and with whom they will live. For example, a judge in Alberta will generally not order a 15-year-old to live with one parent or the other as a typical child of this age is capable of making his or her own decisions. Also, once a youth turns 16, s/he can become an emancipated minor. Therefore, it is very unlikely that a court will order a 16-year-old to live with one parent or another. A 10-year-old child, however, may lack the maturity to make this decision. A child of this age may voice his or her opinions, but the child’s wish may not be determinative.
Finally, our top-rated* Calgary Hague Child Abduction Return lawyers are aware that the Calgary family law courts will consider whether or not the child has been influenced by either parent. A psychological assessment may be required to determine the child’s true wishes as to where s/he wants to live. Another relevant factor is the safety of the child and the ability of the parent with whom the child resides to provide for her or him. Judges need some evidence, typically in the form of an affidavit, to show that the parent with whom the child is to reside can properly care for the child.
Hague Convention On Child Abduction 1 877 602 9900
The Hague Convention on the Civil Aspects of International Child Abduction was concluded on October 25, 1980. It applies to children under the age of 16. The purpose of the Convention is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access” (preamble to the Convention on the Civil Aspects of International Child Abduction [the “Hague Convention”]).
Article 13(b) of the Hague Convention says that a Contracting State, which includes Canada, is not required to order the return of the child if the person opposing the return establishes that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. This imposes a very high standard that is not displaced by concerns or reservations about one party’s ability to look after the child. The underlying premise is that the country in which the child has normally resided should resolve issues of parenting and access.
Calgary Family Lawyers Explain Hague Exceptions
The Alberta Court of Appeal case, of RVW v CLW, 2019 ABCA 273 illustrates the high standard for applying the exception in Article 13(b) of the Hague Convention. involving the issue of whether the child should live primarily in Canada with the mother or the United States with the father:
Facts
The appellant mother is a Canadian citizen and the respondent father is an American citizen. The parties were living in Texas when their child was born. The father has a criminal record for domestic assault on a former partner and for failing to provide a breath sample. The parties separated three months after their child was born. The father did not allow the mother to have access to the child for over three weeks because he was concerned that she would leave the United States with the child. The mother did return to Calgary with the child without the father’s consent, notwithstanding that there was not yet an order from the court regarding the child’s primary residence.
Decision
Under the Hague Convention, a judge in Alberta ordered that the child be returned to Texas. The judge determined that the child was “habitually resident” in Texas because the child was born in Texas and the father could not legally live in Calgary as he had overstayed his visitor’s visa. Further, the exception in Article 13(b) of the Hague Convention (see above) did not apply since the mother had not proven that the child would be exposed to a grave risk of harm under the care and control of the father. The mother’s concerns about the father’s alcohol abuse, his criminal record and his withholding of the child from his mother for over three weeks were not sufficient to satisfy the high threshold of Article 13(b).
Proper Evidence Of Child’s Wishes and Maturity Needed
In an earlier case, of S(J) v M(R), 2013 ABCA 441, the respondent father failed to return his 9-year-old son, who was visiting him in Calgary, to the appellant mother who lived in Israel. The mother brought an application under the Hague Convention.
The issue, in this case, was whether the child was mature enough to decide where he wanted to live. Counsel was appointed for the child; however, counsel was not qualified to analyze the level of maturity of the child and no other evidence concerning the child’s maturity was before the judge. Therefore, the mother’s appeal was allowed and the Alberta Court of Appeal directed that the child be returned to the mother despite the child’s wish to remain in Calgary.
Call Our Top Rated Calgary family Lawyers* 1 877 602 9900
If you find yourself in a situation where your former partner refuses to return your child, whether or not s/he is in breach of a court order, contact one of MacLean Law’s offices in British Columbia or Alberta immediately to speak with a lawyer who has expertise in resolving child abduction/return of child cases.
