February 19, 2021

Your Child has been Wrongfully Taken to Canada

          A parent, even one who is the primary parent of a child, does not have the right to unilaterally move to a new country with the child without the agreement of the other parent or a court order permitting the move. If your child has been wrongfully taken to, or is wrongfully remaining in BC, there are two main legal remedies that can help you in having your child returned home:

          1.    The Hague Convention on the Civil Aspects ofInternational Child Abduction (the “Hague Convention”); or

          2.    Division 7 – Extraprovincial Matters Respecting Parenting Arrangements of the Family Law Act.

          If your child’s home country (or place of “habitual residence”) is a country which is a signatory to the Hague Convention, then you can retain a lawyer in BC and bring a court application for the return of your child to the home country. You may also wish to file an application through the Central Authority in BC. Your case will go through an expedited process in BC Supreme Court. If the court here in BC finds that your child was wrongfully removed or retained in BC, and some very limited exceptions are not applicable, the court will likely order an immediate return of the child. The court would likely set the parameters for the return. Alternatively, it is possible that the particulars of the return could be coordinated between the BC Central Authority and the Central Authority of the child’s home country.

          If your child’s home country is not a signatory to the Hague Convention, then you can apply for a return of your child pursuant to s. 77 of the Family Law Act in BC Supreme Court. If the court here in BC finds that your child was wrongfully removed or retained in BC, the court will likely order an immediate return of the child.

          Your matter may be complicated by a temporary agreement that you had with your ex-spouse. For example, you and your ex-spouse agreed that he or she could come to Canada for a set period and  return when that time was up, and your ex-spouse then refuses to return. While agreements like this can complicate matters, they are not out of the ordinary, and can be addressed.

          Our firm has extensive experience in international child abduction cases. The following are just a small sample of international child abduction cases on which we have appeared as counsel:  

  • Suarez v. Carranza, 2008 BCSC 1187 – child abducted to Canada by mother returned to New York.
  • Fasiang v. Fasiangova, 2008 BCSC 1339 – child abducted to Canada by mother returned to father in Slovakia.
  • Beatty v. Schatz, 2009 BCSC 706, 2009 BCCA 310 – child abducted to Canada by father returned to mother in     Ireland.
  • Oncu v. Oncu, 2009 BCSC 829 – child abducted to Canada by father returned to mother in Turkey.
  • Medina v. Pallett, 2010 BCSC 259 – child abducted to Canada by mother returned to Honduras.
  • Rey v. Getta, 2013 BCCA 369 - children abducted to Canada by father returned to mother in Florida.

          Our senior associate, Bill Storey, is also a Fellow of theInternational Academy of Matrimonial Lawyers. He is regularly consulted by lawyers in BC and globally on international child abduction matters. In addition to Bill’s experience, all our lawyers have worked on cases involving international child abductions. Most recently, Cléa Amundsen and Jeremia Chow, were speakers on a seminar on the application of the Hague Convention in BC courts. The seminar was hosted by Rise Women’s Legal Centre and attended by lawyers, advocates, and members of the public.

          International child abductions are an extremely complicated area of law, often needing expertise on how to address the issue of competing legal jurisdictions. If you believe your child has been wrongfully taken to, or is wrongfully remaining in BC, do not hesitate to contact us for a consultation to determine whether we can assist you.

 

This blog post is for educational purposes only and should not be taken as legal advice, as each case is specific to the facts and people.

THE BRIEF

Read more from Kitsilano Family Law’s blog — The Brief.

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