MacLean Law’s top ranked Vancouver BC Hague Child Abduction lawyers explain that the Hague Convention provides a framework for international cooperation to protect children from being wrongfully taken from their home country and to ensure their prompt return, if necessary. Lorne MacLean KC explains the rules and how to protect your child from being abducted. If you have concerns contact us about, protection orders, non-removal orders, surrender of children’s and spousal passports, posting of security and more.
Here is a recent case where we successfully prevented travel to a non -Hague state where there were concerns of high conflict, a wealthy spouse with ties to the foreign country and more issues of concern on removal of the children..
Vancouver BC Hague Child Abduction Lawyers Tel: 604 602 9000
The objects of the 1980 Hague Convention, set out in Article 1, are “to secure the prompt return of children wrongfully removed to or retained in any Contracting State”, and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States”.
Canada is a party to the 1980 Hague Convention and it is in force in BC. A new BC Court of Appeal case provides a good summary of the purpose and operation of the Hague Child Abduction Convention.
Notably, not all countries are signatories to the Hague Child Abduction Convention so be very careful in ensuring children do not travel to non- Hague states if you are separated and have any concerns about potential abduction by your ex-spouse. For basic advice from the Canadian Government on reducing the risk of child abduction, click here.
How Can I prevent Child Abduction By My Ex- Spouse?
Child Abduction Prevention Tips Tel: 604 602 9000
Factors You Need To Consider To Reduce The Risk Of Abduction are listed in the Canadian Government Travel Website link as follows:
- Controlling behaviour; for example, the parent:
- has abducted your child before or threatens to take your child away from you
- harasses you or is obsessed with you – for example, by:
- showing up without warning
- constantly trying to contact you
- using the child as a go-between to deliver messages to you and get information about you
- criticizes or lies about you to your child or tries to come between you and your child in other ways
- expresses unreasonable concerns about the child’s safety and well-being while in your care
- Hostility; for example, the parent:
- threatens to harm the child, you or themselves
- shows hostility, anger or resentment toward you or your family
- fights with you often
- is angry about a decision
- Planning a major life change; for example, the parent:
- shows interest in moving or returning to a country other than Canada (or your child talks about a possible move)
- has closed bank accounts, is gathering records or seems to be preparing for a move
- has quit a job or is selling a home
- has immigration problems in Canada
The risks of abduction are greater if the other parent:
- is financially independent
- does not have strong ties to Canada
- has citizenship in or strong ties to another country
You can take some steps if you think your child is in danger of being abducted to another country.
- Keep contact with your child and the other parent
- Contact Consular Services at Global Affairs Canada to get information and advice about preventing child abduction
- If you are separating or divorcing, get a parenting or custody agreement or order that sets out important details about parenting arrangements
- Secure your child’s passport, either Canadian or foreign. If your child does not have a Canadian passport, you may ask the Passport Program to have your child’s name included in the Passport Program System Lookout List.
Vancouver BC Hague Child Abduction Lawyers
The 2025 BCCA 35 Zahariev v Zahariev case explains how the Convention works and interestingly goes over the 2 versions of the Convention that exist. In this case the BC Court of Appeal dismissed an appeal from a refusal to return a child to Bulgaria because the child’s habitual residence was in fact in BC. The appellant and respondent were parents of a child born in Canada shortly after the respondent mother arrived in B.C. The appellant brought an application under the 1980 Hague Convention seeking the “return” of the child to Bulgaria. The chambers judge found the child habitually resident in B.C. by the date of retention and dismissed the appellant’s return application. The appellant appealed arguing: credibility, procedural fairness and ineffective assistance of counsel, and Bulgarian court decisions regarding jurisdiction and the child’s habitual residence under the 1996 Hague Convention all of which were dismissed such that the child remained in BC pending further family rulings on parenting guardianship and ancillary issues. Here is what the Court decided:
Legal Framework
1980 Hague Convention
[19] Canada and Bulgaria are contracting parties to the 1980 Hague Convention, which has the force of law in B.C. pursuant to s. 80 of the Family Law Act, S.B.C. 2011, c. 25.
[20] The objects of the 1980 Hague Convention, set out in Article 1, are “to secure the prompt return of children wrongfully removed to or retained in any Contracting State”, and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States”.
[21] Related to the first object, prompt return, Article 2 requires contracting states to “use the most expeditious procedures available” to secure the implementation of the 1980 Hague Convention’s objects. Article 11 specifically requires judicial authorities of the contracting states to “act expeditiously in proceedings for the return of children”. Further, if a decision is not made within 6 weeks of the start of the proceeding, the applicant or the requesting state has the right to request an explanation for the delay.
[22] Under Article 3, the removal or retention of a child is considered wrongful where: (a) it is in breach of rights of custody under the law of the State in which the child was “habitually resident” immediately before the removal or retention; and (b) at the time of the removal or retention those rights were actually exercised, or would have been exercised but for the removal or retention.
[23] If the criteria in Article 3 are met and the return application has been started within one of year of the wrongful removal or retention, subject to the exceptions in Article 13, Article 12 provides that the judicial authority of the contracting state where the child is must order the return of the child forthwith.
[24] An order for the return of a child under the 1980 Hague Convention is not, however, a custody determination. It is simply an order designed to restore the status quo that existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction: Office of the Children’s Lawyer v. Balev, 2018 SCC 16 [Balev] at para. 24.
[25] In determining whether there has been a wrongful removal or retention of a child under Article 3, the court first determines where the child was “habitually resident” immediately before the removal or retention. If the child’s habitual residence is not in the state of the parent seeking return, then the 1980 Hague Convention does not apply: Balev at para. 36. As the judge observed, identifying the date of the wrongful removal or retention does not imply a finding the removal or retention was actually wrongful. Instead the date provides an anchor for the habitual residence analysis: see Ludwig v. Ludwig, 2019 ONCA 680 at paras. 24–25.
[26] The 1980Hague Convention does not define habitual residence. In Balev, the Court adopted a “hybrid approach” to determining habitual residence. “Fact-bound, practical and unencumbered with rigid rules, formulas or presumptions” the hybrid approach requires the judge to determine the focal point of the child’s life — that is, the family and social environment in which the child’s life has developed — immediately prior to the removal or retention: at para. 43. All relevant circumstances should be considered, and no single factor dominates the analysis: at para. 44. The circumstances of the parents, including their intentions, may be an important consideration, particularly in the case of young children. However, the role of parental intention in determining habitual residence “depends on the circumstances specific to each individual case”: at para. 45. There is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child: at para. 46.
1996 Hague Convention
[27] As indicated, the Bulgarian courts applied the 1996 Hague Convention in determining jurisdiction and Neva’s habitual residence.
[28] Canada signed the 1996 Hague Convention on May 25, 2017. Bulgaria has ratified it but Canada has not, which also means the 1996 Hague Convention does not have the force of law in this country.
[29] Article 50 of the 1996 Hague Convention states that it does not affect the application of the 1980 Hague Convention, which also notes that nothing precludes provisions of the 1996 Hague Convention from being invoked “for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organising access rights.”
[30] The explanatory report on the 1996 Hague Convention provides that Article 50 serves as an extension of the primacy of the 1980 Hague Convention declared in Article 34. It sets out that the 1980 Hague Convention takes priority over the 1961 Hague Convention, which the 1996 Hague Convention replaced (Lagarde P., Explanatory report on the 1996 Hague Convention, tome II, Protection of children).
[31] Significantly, Canadian authorities establish that the responsibility for adjudicating 1980 Hague Convention applications lies with the state to which the child has been removed or the requested state. Although the appellant reads the case differently, this was the conclusion in Pitts v. De Silva, 2008 ONCA 9 at paras. 35–37, which Balev v. Baggott, 2016 ONCA 680 [Balev ONCA] affirmed at paras. 65–67.
Our top Vancouver BC Hague Child Abduction Lawyers can help you but only if you act immediately. If you are asking: How Can I prevent Child Abduction By My Ex- Spouse? Contact us immediately to develop an urgent strategy to prevent removal or get your child returned to you..
