MacLean Law is a top international family law firm and handles both Hague and non Hague wrongful removal and wrongful retention cases. We have argued both for and against return and set key precedents in the area.
Lorne MacLean, KC is a fellow of the prestigious International Academy Of Family Lawyers “IAFL” reserved for a select few lawyers in the world with proven international family law experience.
The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty designed to protect children from the harmful effects of wrongful removal or retention across international borders. It is designed to ensure the prompt return of children to their state of habitual residence and to secure protection for rights of custody and access.
Canada, including British Columbia, has adopted the Convention, with Section 80 of B.C.’s Family Law Act giving it the force of law. The Convention applies to children under 16 years of age. See also Recognition and Enforcement of Foreign Child Custody Orders in British Columbia.
Key Principles of the Hague Convention on Child Abduction
The Convention’s primary goal is to restore the status quo before a child’s wrongful removal or retention, thereby discouraging international child abduction (Office of the Children’s Lawyer v. Balev, [2018] 1 SCR 398, 2018 SCC 16 (CanLII).
A removal or retention is considered wrongful if it breaches custody rights under the law of the child’s habitual residence immediately before the event, and those rights were being exercised Office of the Children’s Lawyer v. Balev, [28]).
“Habitual residence” is the focal point of the child’s life, determined by analyzing all relevant links and circumstances in both countries, the circumstances of the move, and parental intentions (Office of the Children’s Lawyer v. Balev; Gill v. Gill, 2024 BCCA 140 (CanLII); . For young children, this environment is essentially the family environment, determined by the person(s) with whom the child lives and who cares for them (Gill v. Gill, [37]).
The Convention distinguishes between “rights of custody,” which include the right to determine a child’s place of residence, and “rights of access,” which involve taking a child for a limited period W. (V.) v. S. (D.), [1996] 2 SCR 108, 1996 CanLII 192 (SCC), [22]). Only a breach of custody rights triggers the mandatory return procedure (W. (V.) v. S. (D.), [21, 26]).
Critically the Convention does not decide on the merits of custody or access; instead, it ensures the child’s return to the habitual residence for those issues to be determined by the courts there (International Child Abduction: A guide for affected parents – Travel.gc.catravel.gc.ca › travelling › publications › i…; Frequently asked questions about international child abduction, [2]; International child abduction – Province of British Columbia).
MacLean Law is a Leading International Hague Child Abduction Grave Risk Lawyers Firm
MacLean Law won a rare stay of return of the children to Mexico in the BC Court of Appeal under Hague section 13 (b) grave risk exception, pending leave to the Supreme Court of Canada in the difficult case involving two autistic children and the lack of therapeutic services to support them in Mexico versus Canada. Lorne MacLean, KC, leads a tier 1 ultra high net worth team of international Hague child abduction lawyers who handle sensitive international wrongful child removal with the urgency and sensitivity they require.
Exceptions to Return
While return is generally mandatory if proceedings commence within one year of the wrongful removal/retention, [HC Article 12]), several narrow exceptions exist notably:
- Grave risk that the child’s return would expose them to physical or psychological harm or an otherwise intolerable situation Thomson v. Thomson, [1994] 3 SCR 551, 1994 CanLII 26 (SCC). This grave risk of harm must be significant, beyond the ordinary effects of settling in.
- The child objects to being returned and has attained an age and degree of maturity where their views should be considered [HC Article 13]). Canadian law supports child participation in these matters.
- The person seeking return was not exercising custody rights or had consented to or acquiesced in the removal/retention[HC Article 13(a)]).
Leading Canadian Hague International Child Abduction Cases
Canadian courts have consistently interpreted and applied the Hague Convention:
- In Thomson v. Thomson (Thomson v. Thomson), the Supreme Court of Canada affirmed that a non-removal clause in an interim custody order constitutes a custody right under the Convention, making its breach a wrongful removal (Thomson v. Thomson, [563]). The Court emphasized that the Convention’s purpose is not to consider the child’s best interests in the manner of a custody hearing at the return stage (Thomson v. Thomson, [564]).
- W. (V.) v. S. (D.) (W. (V.) v. S. (D.)) clarified the distinction between custody and access rights, stating that only a breach of custody rights triggers the Convention’s return mechanism (W. (V.) v. S. (D.), [21, 26]). It also highlighted that exceptions to return must be interpreted narrowly (W. (V.) v. S. (D.), [37]).
- Office of the Children’s Lawyer v. Balev (Office of the Children’s Lawyer v. Balev) established the “hybrid approach” for determining a child’s habitual residence in Canada (Office of the Children’s Lawyer v. Balev, [48]). This approach requires considering all relevant factors, including the child’s links to both countries, the circumstances of the move, and parental intentions, without any single factor dominating the analysis (Office of the Children’s Lawyer v. Balev, [42, 44, 45]). The case also addressed the non-technical consideration of a child’s objections (Office of the Children’s Lawyer v. Balev, [90]).
- Gill v. Gill (Gill v. Gill) and Airir v Tamri (Airir v Tamri) further applied the Balev hybrid approach to habitual residence, emphasizing that the weight given to parental intention depends on the specific circumstances of each case, especially for infants (Gill v. Gill, [39]; Airir v Tamri, [38]).
- F. v. N. (F. v. N., 2022 SCC 51 (CanLII)) addressed child abductions in non-Hague Convention cases, noting that Canadian provinces, like Ontario, handle them similarly by favoring the child’s return to their habitual residence unless exceptional circumstances, such as serious harm, justify local jurisdiction (F. v. N., [52, 63]).
The Convention provides a framework for international cooperation through designated “Central Authorities” in each province and territory, which manage incoming and outgoing Hague Convention cases These authorities facilitate the return process and provide information, though parents can also apply directly to the court in the country of abduction.
Contact MacLean Law’s Top Hague Child Abduction and Return Lawyers Immediately – Call (604) 602-9000
Understanding these principles and the way Canadian courts apply them is crucial for navigating international child abduction cases.
Time is of the essence in these matters so contact our lawyers immediately if your child has been wrongfully removed or retained or you dispute that the party seeking return is in fact residing in the child’s habitual residence or there is a risk of harm or your adult child does not want to go back.
Hague International Child Abduction Lawyers Recognized Among Canada’s Leading Family Law Firms – (604) 602-9000
MacLean Hague International Child Abduction Lawyers at MacLean Law are nationally recognized for leadership in complex family law and cross-border parenting disputes.
MacLean Law was awarded Family Law Firm of the Year at the Canadian Law Awards, presented in partnership with LEAP Legal Software. The award recognizes exceptional achievement within the Canadian legal profession and was presented at the Liberty Grand in 2024.
This national honour reflects MacLean Law’s impact in high-stakes family law matters, including international parenting disputes for both Hague and non Hague wrongful removal, handled by the firm’s MacLean Hague International Child Abduction Lawyers.
Nationally Recognized Leadership in Family Law
Lorne MacLean, KC, has also been recognized by Business in Vancouver as one of the BC500 – British Columbia’s 500 Most Influential Business Leaders in the Professional Services (Family Law) category. The BC500 highlights individuals who significantly influence the province’s economy, industries, and communities.
Lorne MacLean, KC, was further named one of Canada’s Top 25 Most Influential Lawyers, recognizing his longstanding role in shaping family law jurisprudence and advocacy in British Columbia and across Canada.
Fraser MacLean was also selected as one of Canadian Lawyer’s Top 25 Most Influential Lawyers, acknowledging a career defined by high-stakes advocacy, precedent-setting work, and a deep commitment to client service.
Under this leadership, MacLean Law continues to deliver exceptional results in complex family law matters, including cases involving international jurisdiction and child abduction disputes under the Hague Convention on the Civil Aspects of International Child Abduction.
Why Choose MacLean Hague International Child Abduction Lawyers?
MacLean Law is one of Canada’s most experienced boutique family law firms, trusted to handle cases where complexity, discretion, and strategic advocacy are essential.
Clients choose the MacLean Hague International Child Abduction Lawyers for:
- Extensive experience with international parenting disputes and Hague Convention proceedings
- Strategic representation in cross-border child abduction and wrongful removal cases
- Collaborative work with international counsel and experts
- Proven advocacy in high-conflict and urgent court proceedings
- A proactive approach designed to protect children and parental rights across jurisdictions
MacLean Law also represents ultra-high-net-worth families and works closely with wealth advisors, tax counsel, and estate planning professionals to address the complex financial dimensions of family law disputes.
Trusted Advisors in Complex Family Law Matters
Whether you are facing international child abduction, parenting disputes, divorce, spousal support, child support, or complex asset division, the MacLean Hague International Child Abduction Lawyers provide strategic legal solutions tailored to protect your rights and your future.
With offices across British Columbia and Alberta, including West Vancouver, Victoria, Kelowna, Surrey, and Calgary, MacLean Law serves clients throughout Western Canada and internationally.
