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When you share children with a partner, navigating decision-making responsibility and parenting time (formerly custody and access) can be challenging. When children travel with a parent who doesn’t adhere to a decision-making responsibility arrangement, the situation can quickly become serious. In the context of family law, international child abductions happen when children are taken or kept out of the country by a parent who does not have the authority to do so. An abduction can occur when parents are separated, divorced, or even when they are still together.
Cross-border custody issues in Ontario are often complex, both emotionally and legally. In many cases, abductions are not committed with ill intent or even on purpose. However, regardless of the reason why, if a child is removed from Canada unlawfully, there are options for legal recourse.
At Gelman & Associates, our family lawyers in Toronto can help families who are facing cross-border custody issues or looking for ways to prevent them. If you have questions about your legal rights when it comes to travelling with minor children, contact our legal team today.
What is International Child Abduction?
In Ontario, international child abduction is defined as the unlawful retention or removal of a child in a foreign jurisdiction. This type of abduction happens more often than people think, and can occur when consent obligations are misunderstood or blatantly ignored.
For example, abductions commonly occur when one parent leaves Canada with a child without the other parent’s consent. International abduction may also be found if a parent overstays an agreed-upon duration of travel with the child in a foreign country.
In Canada, the Hague Convention governs how international child abduction cases are treated. The Hague Convention is a treaty signed by over 100 countries, which provides “civil remedy to parents seeking the return of a child wrongfully removed or retained across international borders.” Ontario family law uses this convention as a framework for issuing emergency orders to prevent the unlawful travel of children.
Common Causes of International Abduction & How to Prevent It
There are many ways that international child abduction can happen. As previously mentioned, not all abductions happen for malicious reasons, although some very well may.
Common international abduction scenarios our firm has seen include:
- A foreign parent returning to their home country with shared children after their relationship with a Canadian resident ends.
- A parent fleeing the country with a child in response to abuse or unsafe conditions.
- A parent taking a child to stay with family or friends in another country for an undisclosed amount of time, or indefinitely.
- A parent leaving the country with a child without obtaining proper consent, unaware of the legal ramifications.
Although some parents who take their children out of Canada may be doing so for reasons they believe to be necessary, it may still be deemed international child abduction. Depending on the decision-making responsibility and parenting time arrangement, most separated or divorced parents must obtain the other’s consent before travelling with shared children. This may also be true for parents who are still together or married.
If you are worried that your co-parent may attempt to remove your child from the country without your consent, there are legal steps you can take to help prevent it. Some of your options may include:
- Travel Consent Agreements: If another parent has mentioned their intention to travel with your child, you may require them to sign a travel consent agreement before they may do so. In this agreement, you can specify mandatory return dates for your shared child to Canada.
- Parenting Plan or Separation Agreement Clauses: Inside the parenting plan or separation agreement that you negotiate with your ex-spouse, you may include provisions that prevent them from leaving the country with your child. You can propose a non-removal clause, or you may stipulate that both parents’ written consent is necessary for the child to travel. You can also mandate that a child’s travel documents (like their passport) be kept with the parent who has decision-making responsibility, the court, or a lawyer.
- Emergency Court Orders: If you believe that the risk of international abduction is high, you can apply to the court on an emergency basis for a temporary parenting order, an order for the child’s return, or police intervention. You don’t need to notify the other parent if you intend to file an emergency order–they will be served with the order after police have successfully recovered the child.
If you are a parent facing domestic violence or other unsafe conditions, it may seem like the best option is to leave the country to protect your child. However, travelling internationally without taking the proper legal steps first can significantly affect your decision-making responsibility and any legal claims you want to file in the future.
If you are a survivor of domestic violence looking to keep your child safe from a dangerous situation, you should:
- Go to a shelter or safe location inside the province
- Contact a family lawyer to discuss your legal options
- Apply for a restraining order against the offending parent
- Seek an emergency court order that allows you to leave the country with your child legally without the other parent’s consent
For further support regarding domestic abuse or violence, click here.
What to Do if You Suspect or Are Facing International Child Abduction
If you believe that another parent has left the country with your child without your consent, you should act immediately. Steps you can take include:
- Calling the Authorities: Call both the local police and the Canada Border Services Agency (CBSA) immediately. If your child is still inside the city or province, police can begin looking for them. In emergency situations, they may also issue an AMBER alert. With proper notice, the CBSA may be able to prevent your child from crossing an international border if they have not already left Canada.
- Contact a Family Lawyer: A family lawyer can review the terms of your parenting plan or separation agreement to confirm that your child has been removed unlawfully. Depending on the urgency of your situation, they can advise you about your best option moving forward to keep your child safe.
- Request an Emergency Order: As previously mentioned, you can seek an emergency order from the court that comes into effect immediately to prevent further travel. You’ll need to provide evidence that your child has been removed unlawfully or that your decision-making responsibility arrangement has been violated. When approved, an emergency order will normally trigger police action and alert border agents. Courts can also freeze passports or prohibit the removal of your child from Ontario.
It is important to act quickly if you suspect your child has been removed from the country by another parent without your consent. If the child has been outside of Canada for too long, they may be considered “habitually resident” in the country they were taken to. In these scenarios, legally mandating their return to Canada becomes harder.
If your child has already been removed from Canada, or they have been in a foreign jurisdiction for a long time, you may need to initiate Hague Convention proceedings in the other country. Your lawyer will be able to provide legal advice specific to your situation and take the correct actions.
Contact Our Family Lawyers For Help With Your International Child Abduction Matter Now
International child abduction is incredibly serious. If you’re experiencing issues with cross-border custody violations, you must act quickly and legally. Even when circumstances are difficult or travel seems necessary, following due process is essential to protect both yourself and your child. Parents should consult a lawyer before making any decisions involving international travel with a child.
If you are worried about international child abduction or are navigating a cross-border decision-making responsibility dispute, Gelman & Associates can help. Our Toronto family lawyers are experienced in Hague Convention cases and emergency child protection orders. Contact us today to discuss your situation confidentially.
