After a separation or divorce, the last thing any parent wants to think about is the possibility of their child being taken away outside of the country. However, international child abductions occur regularly and should be considered during the separation or divorce process, particularly if the parent’s relationship is acrimonious.
This article will explore possible actions to prevent, and respond to, a child abduction. We also look at a recent decision of the Ontario Superior Court of Justice in which a father sought an order requiring the return of his child to Canada.
If you think there may be a risk that your child’s other parent may attempt an international child abduction, you can:
The Canadian Government’s guidebook provides further information.
If your child is missing and you think the other parent may be involved, you should contact the police. If you think your child is in danger of being abducted and taken outside of Canada, you can also contact consular services at Global Affairs Canada where a case management officer will be assigned to help you.
You may also wish to seek immediate legal advice. For example, if your child was habitually resident in Canada but has been taken to a country that is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction, it may be possible to apply for the return of your child through the courts of the country where the child has been taken.
In Bhadauria v Cote, the parents separated in August 2021 and had negotiated a parenting time schedule for their 16-month-old daughter.
In March 2022, the father noticed that the mother had listed her house for sale. He became concerned about his daughter’s safety and possible relocation. He emailed the mother but did not receive a reply, so he contacted the Ottawa Police Services. The Police contacted the mother, who had moved in with her parents in southern France with the parties’ daughter.
The father commenced proceedings against the mother and in April 2022, he was granted leave to bring an urgent motion before the court. He requested a temporary order requiring the mother to return the child to Ottawa immediately and to surrender their daughter’s Canadian and French passports to his lawyer. He also sought to provide the police force with jurisdiction to locate and deliver their daughter to the father. Finally, he asked the court for an interim order for parenting time.
The mother requested that she be permitted to relocate to France with their daughter. She argued that she had been subjected to psychological abuse amounting to family violence and that it was in the child’s best interests to live with her in France because she had been the primary caregiver of their daughter since birth.
The parties agreed that the child’s last habitual residence was in Ottawa.
Justice Shelston cited a previous case stating that:
“…the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.”
His Honour said that the mother did not have the right to remove their daughter from Ottawa because she did not have the father’s consent, nor did she have a court order permitting relocation. Justice Shelston went on to explain that if the mother could prove that it was appropriate for her to move based on certain factors, including the existence of family violence, the court may permit the move.
Justice Shelston noted that the legislation had been amended to specifically identify family violence as a factor to be considered in determining the best interests of the child.
However, his Honour explained that the court had to be cautious in making findings of family violence where the evidence is based on untested affidavits with no opportunity for oral evidence, as was the case here, noting:
“The court should seek documentary evidence such as emails or text messages or some other type of corroborative evidence to allow the court to make at least an initial finding regarding these very serious allegations.”
His Honour did not find that the mother had met her burden of proof to show that she was a victim of family violence. She did not submit any emails or texts that could be considered threatening or abusive to support her allegations.
The father denied the allegations and made his own allegations of abuse against the mother.
Justice Shelston was troubled by the fact that the mother failed to provide evidence that her decision to relocate to France was a last-minute decision made out of desperation. For example, she had not disclosed when she purchased the plane ticket or when she listed her house for sale:
“The mother does not address why she did not commence court proceedings seeking an urgent motion requesting urgent relief such as a restraining order, temporary without prejudice decision-making responsibility and parenting time order. The mother had options. However, the mother availed herself of a self-help remedy by moving to France with the child, and then asking for permission of this court to authorize her actions after the fact.”
On May 24, 2022, the mother was ordered to return the parties’ daughter to Ottawa by June 11, 2022.
If you are experiencing child access and parenting time issues, contact the experienced family lawyers at NULaw in Toronto. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.