Child Abduction Act
CHAPTER 67 OF THE REVISED STATUTES, 1989
An Act to Implement the
Hague Convention on the Civil Aspects
of International Child Abduction
1 This Act may be cited as the Child Abduction Act. R.S., c. 67, s. 1.
2 In this Act, "Convention" means the Convention on the CivilAspects of International Child Abduction set out in the Schedule to thisAct. R.S., c. 67, s. 2.
Effective date of Convention
3 On, from and after the date the Convention enters into force inrespect of the Province as determined by the Convention, except asprovided in Section 4, the Convention is in force in the Province and theprovisions thereof are law in the Province. R.S., c. 67, s. 3.
Crown not bound to assume costs
4 The Crown is not bound to assume any cost resulting under theConvention from the participation of legal counsel or advisers or fromcourt proceedings except in accordance with the Legal Aid Act. R.S.,c. 67, s. 4.
5 The Attorney General shall be the central authority for theProvince for the purpose of the Convention. R.S., c. 67, s. 5.
Application to court
6 An application may be made to a court in pursuance of a right oran obligation under the Convention. R.S., c. 67, s. 6.
Declaration that Convention applies
7 The Attorney General shall request the Government of Canada tosubmit a declaration to the Ministry for Foreign Affairs of the Kingdomof the Netherlands declaring that the Convention extends to the Province. R.S., c. 67, s. 7.
Publication of effective date of Convention
8 The Attorney General shall cause to be published in the RoyalGazette the date the Convention comes into force in the Province. R.S.,c. 67, s. 8.
9 The Governor in Council may make such regulations as arenecessary to carry out the intent and purpose of this Act. R.S., c. 67, s. 9.
Conflict with other Acts
10 Where there is a conflict between this Act and any other enactment,this Act prevails. R.S., c. 67, s. 10.
CONVENTION ON THE CIVIL ASPECTS OFINTERNATIONAL CHILD ABDUCTION
The States signatory to the present Convention.
Firmly convinced that the interests of children are of paramount importance in mattersrelating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongfulremoval or retention and to establish procedures to ensure their prompt return to theState of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect and have agreed upon thefollowing provisions:
CHAPTER I - SCOPE OF THE CONVENTION
The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retainedin any Contracting State; and
(b) to ensure that rights of custody and of access under the law of oneContracting State are effectively respected in the other Contracting States.
Contracting States shall take all appropriate measures to secure within their territoriesthe implementation of the objects of the Convention. For this purpose they shall use themost expeditious procedures available.
The removal or the retention of a child is to be considered wrongful where
(a) it is in breach of rights of custody attributed to a person, an institution orany other body, either jointly or alone, under the law of the State in which thechild was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised,either jointly or alone, or would have been so exercised but for the removal orretention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular byoperation of law or by reason of a judicial or administrative decision, or by reason ofan agreement having legal effect under the law of that State.
The Convention shall apply to any child who was habitually resident in a ContractingState immediately before any breach of custody or access rights. The Convention shallcease to apply when the child attains the age of 16 years.
For the purposes of this Convention:
(a) "rights of custody" shall include rights relating to the care of the personof the child and, in particular, the right to determine the childs place ofresidence;
(b) "rights of access" shall include the right to take a child for a limitedperiod of time to a place other than the childs habitual residence.
CHAPTER II - CENTRAL AUTHORITIES
A Contracting State shall designate a Central Authority to discharge the duties which areimposed by the Convention upon such authorities.
Federal States, States with more than one system of law or States having autonomousterritorial organizations shall be free to appoint more than one Central Authority and tospecify the territorial extent of their powers. Where a State has appointed more than oneCentral Authority, it shall designate the Central Authority to which applications may beaddressed for transmission to the appropriate Central Authority within that State.
Central Authorities shall co-operate with each other and promote co-operation amongstthe competent authorities in their respective States to secure the prompt return ofchildren and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriatemeasures:
(a) to discover the whereabouts of a child who has been wrongfully removedor retained;
(b) to prevent further harm to the child or prejudice to interested parties bytaking or causing to be taken provisional measures;
(c) to secure the voluntary return of the child or to bring about an amicableresolution of the issues;
(d) to exchange, where desirable, information relating to the socialbackground of the child;
(e) to provide information of a general character as to the law of their Statein connection with the application of the Convention;
(f) to initiate or facilitate the institution of judicial or administrativeproceedings with a view to obtaining the return of the child and, in a propercase, to make arrangements for organizing or securing the effective exercise ofrights of access;
(g) where the circumstances so require, to provide or facilitate the provisionof legal aid and advice, including the participation of legal counsel and advisers;
(h) to provide such administrative arrangements as may be necessary andappropriate to secure the safe return of the child;
(i) to keep each other informed with respect to the operation of thisConvention and, as far as possible, to eliminate any obstacles to its application.
CHAPTER III - RETURN OF CHILDREN
Any person, institution or other body claiming that a child has been removed or retainedin breach of custody rights may apply either to the Central Authority of the childshabitual residence or to the Central Authority of any other Contracting State forassistance in securing the return of the child.
The application shall contain:
(a) information concerning the identity of the applicant, of the child and ofthe person alleged to have removed or retained the child;
(b) where available, the date of birth of the child;
(c) the grounds on which the applicants claim for return of the child isbased;
(d) all available information relating to the whereabouts of the child and theidentity of the person with whom the child is presumed to be.
The application may be accompanied or supplemented by:
(e) an authenticated copy of any relevant decision or agreement;
(f) a certificate or an affidavit emanating from a Central Authority, or othercompetent authority of the State of the childs habitual residence, or from aqualified person, concerning the relevant law of that State;
(g) any other relevant document.
If the Central Authority which receives an application referred to in Article 8 has reasonto believe that the child is in another Contracting State, it shall directly and withoutdelay transmit the application to the Central Authority of that Contracting State andinform the requesting Central Authority, or the applicant, as the case may be.
The Central Authority of the State where the child is shall take or cause to be taken allappropriate measures in order to obtain the voluntary return of the child.
The judicial or administrative authorities of Contracting States shall act expeditiously inproceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision withinsix weeks from the date of commencement of the proceedings, the applicant or theCentral Authority of the requested State, on its own initiative or if asked by the CentralAuthority of the requesting State, shall have the right to request a statement of thereasons for the delay. If a reply is received by the Central Authority of the requestedState, that Authority shall transmit the reply to the Central Authority of the requestingState, or to the applicant, as the case may be.
Where a child has been wrongfully removed or retained in terms of Article 3 and, at thedate of the commencement of the proceedings before the judicial or administrativeauthority of the Contracting State where the child is, a period of less than one year haselapsed from the date of the wrongful removal or retention, the authority concerned shallorder the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have beencommenced after the expiration of the period of one year referred to in the precedingparagraph, shall also order the return of the child, unless it is demonstrated that the childis now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believethat the child has been taken to another State, it may stay the proceedings or dismiss theapplication for the return of the child.
Notwithstanding the provisions of the preceding Article, the judicial or administrativeauthority of the requested State is not bound to order the return of the child if theperson, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of thechild was not actually exercising the custody rights at the time of removal orretention, or had consented to or subsequently acquiesced in the removal orretention; or
(b) there is a grave risk that his or her return would expose the child tophysical or psychological harm or otherwise place the child in an intolerablesituation.
The judicial or administrative authority may also refuse to order the return of the childif it finds that the child objects to being returned and has attained an age and degree ofmaturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial andadministrative authorities shall take into account the information relating to the socialbackground of the child provided by the Central Authority or other competent authorityof the childs habitual residence.
In ascertaining whether there has been a wrongful removal or retention within themeaning of Article 3, the judicial or administrative authorities of the requested State maytake notice directly of the law of, and of judicial or administrative decisions, formallyrecognized or not in the State of the habitual residence of the child, without recourse tothe specific procedures for the proof of that law or for the recognition of foreigndecisions which would otherwise be applicable.
The judicial or administrative authorities of a Contracting State may, prior to the makingof an order for the return of the child, request that the applicant obtain from theauthorities of the State of the habitual residence of the child a decision or otherdetermination that the removal or retention was wrongful within the meaning of Article3 of the Convention, where such a decision or determination may be obtained in thatState. The Central Authorities of the Contracting States shall so far as practicable assistapplicants to obtain such a decision or determination.
After receiving notice of a wrongful removal or retention of a child in the sense ofArticle 3, the judicial or administrative authorities of the Contracting State to which thechild has been removed or in which it has been retained shall not decide on the meritsof rights of custody until it has been determined that the child is not to be returned underthis Convention or unless an application under this Convention is not lodged within areasonable time following receipt of the notice.
The sole fact that a decision relating to custody has been given in or is entitled torecognition in the requested State shall not be a ground for refusing to return a childunder this Convention, but the judicial or administrative authorities of the requestedState may take account of the reasons for that decision in applying this Convention.
The provisions of this Chapter do not limit the power of a judicial or administrativeauthority to order the return of the child at any time.
A decision under this Convention concerning the return of the child shall not be takento be a determination on the merits of any custody issue.
The return of the child under the provisions of Article 12 may be refused if this wouldnot be permitted by the fundamental principles of the requested State relating to theprotection of human rights and fundamental freedoms.
CHAPTER IV - RIGHTS OF ACCESS
An application to make arrangements for organizing or securing the effective exerciseof rights of access may be presented to the Central Authorities of the Contracting Statesin the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forthin Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of anyconditions to which the exercise of those rights may be subject. The Central Authoritiesshall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assistin the institution of proceedings with a view to organizing or protecting these rights andsecuring respect for the conditions to which the exercise of these rights may be subject.
CHAPTER V - GENERAL PROVISIONS
No security, bond or deposit, however described, shall be required to guarantee thepayment of costs and expenses in the judicial or administrative proceedings falling withinthe scope of this Convention.
No legalization or similar formality may be required in the context of this Convention.
Any application, communication or other document sent to the Central Authority of therequested State shall be in the original language, and shall be accompanied by atranslation into the official language or one of the official languages of the requestedState or, where that is not feasible, a translation into French or English.
However, a Contracting State may, by making a reservation in accordance with Article42, object to the use of either French or English, but not both, in any application,communication or other document sent to its Central Authority.
Nationals of the Contracting State and persons who are habitually resident within thoseStates shall be entitled in matters concerned with the application of this Convention tolegal aid and advice in any other Contracting State on the same conditions as if theythemselves were nationals of and habitually resident in that State.
Each Central Authority shall bear its own costs in applying this Convention.
Central Authorities and other public services of Contracting States shall not impose anycharges in relation to applications submitted under this Convention. In particular, theymay not require any payment from the applicant towards the costs and expenses of theproceedings or, where applicable, those arising from the participation of legal counselor advisers. However, they may require the payment of the expenses incurred or to beincurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance with Article42, declare that it shall not be bound to assume any costs referred to in the precedingparagraph resulting from the participation of legal counsel or advisers or from courtproceedings, except insofar as those costs may be covered by its system of legal aid andadvice.
Upon ordering the return of a child or issuing an order concerning rights of access underthis Convention, the judicial or administrative authorities may, where appropriate, directthe person who removed or retained the child, or who prevented the exercise of rightsof access, to pay necessary expenses incurred by or on behalf of the applicant, includingtravel expenses, any costs incurred or payments made for locating the child, the costsof legal representation of the applicant, and those of returning the child.
When it is manifest that the requirements of this Convention are not fulfilled or that theapplication is otherwise not well founded, a Central Authority is not bound to accept theapplication. In that case, the Central Authority shall forthwith inform the applicant orthe Central Authority through which the application was submitted, as the case may be,of its reasons.
A Central Authority may require that the application be accompanied by a writtenauthorization empowering it to act on behalf of the applicant, or to designate a representative so to act.
This Convention shall not preclude any person, institution or body who claims that therehas been a breach of custody or access rights within the meaning of Article 3 or 21 fromapplying directly to the judicial or administrative authorities of a Contracting State,whether or not under the provisions of this Convention.
Any application submitted to the Central Authorities or directly to the judicial oradministrative authorities of a Contracting State in accordance with the terms of thisConvention, together with documents and any other information appended thereto orprovided by a Central Authority, shall be admissible in the courts or administrativeauthorities of the Contracting States.
In relation to a State which in matters of custody of children has two or more systemsof law applicable in different territorial units:
(a) any reference to habitual residence in that State shall be construed asreferring to habitual residence in a territorial unit of that State;
(b) any reference to the law of the State of habitual residence shall beconstrued as referring to the law of the territorial unit in that State where thechild habitually resides.
In relation to a State which in matters of custody of children has two or more systemsof law applicable to different categories of persons, any reference to the law of that Stateshall be construed as referring to the legal system specified by the law of that State.
A State within which different territorial units have their own rules of law in respect ofcustody of children shall not be bound to apply this Convention where a State with aunified system of law would not be bound to do so.
This Convention shall take priority in matters within its scope over the Convention of5 October l961 concerning the powers of authorities and the law applicable in respectof the protection of minors, as between Parties to both Conventions. Otherwise thepresent Convention shall not restrict the application of an international instrument inforce between the State of origin and the State addressed or other law of the Stateaddressed for the purposes of obtaining the return of a child who has been wrongfullyremoved or retained or of organizing access rights.
This Convention shall apply as between Contracting States only to wrongful removalsor retentions occurring after its entry into force in those States.
Where a declaration has been made under Article 39 or 40, the reference in thepreceding paragraph to a Contracting State shall be taken to refer to the territorial unitor units in relation to which this Convention applies.
Nothing in this Convention shall prevent two or more Contracting States, in order tolimit the restrictions to which the return of the child may be subject, from agreeingamong themselves to derogate from any provisions of this Convention which may implysuch a restriction.
CHAPTER VI - FINAL CLAUSES
The Convention shall be open for signature by the States which were Members of theHague Conference on Private International Law at the time of its Fourteenth Session.
It shall be ratified, accepted or approved and the instruments of ratification, acceptanceor approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom ofthe Netherlands.
Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs ofthe Kingdom of the Netherlands.
The Convention shall enter into force for a state acceding to it on the first day of thethird calendar month after the deposit of its instrument of accession.
The accession will have effect only as regards the relations between the acceding Stateand such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, acceptingor approving the Convention after an accession. Such declaration shall be deposited atthe Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shallforward, through diplomatic channels, a certified copy to each of the Contracting States.
The Convention will enter into force as between the acceding State and the State that hasdeclared its acceptance of the accession on the first day of the third calendar month afterthe deposit of the declaration of acceptance.
Any State may, at the time of signature, ratification, acceptance, approval or accession,declare that the Convention shall extend to all the territories for the internationalrelations of which it is responsible, or to one or more of them. Such a declaration shalltake effect at the time the Convention enters into force for that State.
Such declaration, as well as any subsequent extension, shall be notified to the Ministryof Foreign Affairs of the Kingdom of the Netherlands.
If a Contracting State has two or more territorial units in which different systems of laware applicable in relation to matters dealt with in this Convention, it may at the time ofsignature, ratification, acceptance, approval or accession declare that this Conventionshall extend to all its territorial units or only to one or more of them and may modifythis declaration by submitting another declaration at any time.
Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdomof the Netherlands and shall state expressly the territorial units to which the Conventionapplies.
Where a Contracting State has a system of government under which executive, judicialand legislative powers are distributed between central and other authorities within thatState, its signature or ratification, acceptance or approval of, or accession to thisConvention, or its making of any declaration in terms of Article 40 shall carry noimplication as to the internal distribution of powers within that State.
Any State may, not later than the time of ratification, acceptance, approval or accession,or at the time of making a declaration in terms of Article 39 or 40, make one or both ofthe reservations provided for in Article 24 and Article 26, third paragraph. No otherreservation shall be permitted.
Any State may at any time withdraw a reservation it has made. The withdrawal shallbe notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
The reservation shall cease to have effect on the first day of the third calendar monthafter the notification referred to in the preceding paragraph.
The Convention shall enter into force on the first day of the third calendar month afterthe deposit of the third instrument of ratification, acceptance, approval or accessionreferred to in Articles 37 and 38.
Thereafter the Convention shall enter into force:
1. for each State ratifying, accepting, approving or acceding to itsubsequently, on the first day of the third calendar month after the deposit of itsinstrument of ratification, acceptance, approval or accession;
2. for any territory or territorial unit to which the Convention has beenextended in conformity with Article 39 or 40, on the first day of the thirdcalendar month after the notification referred to in that Article.
The Convention shall remain in force for five years from the date of its entry into forcein accordance with the first paragraph of Article 43 even for States which subsequentlyhave ratified, accepted, approved it or acceded to it. If there has been no denunciation,it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the Kingdom ofthe Netherlands at least six months before the expiry of the five year period. It may belimited to certain of the territories or territorial units to which the Convention applies.
The denunciation shall have effect only as regards the State which has notified it. TheConvention shall remain in force for the other Contracting States.
The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify theStates Members of the Conference, and the States which have acceded in accordancewith Article 38, of the following:
1. the signatures and ratifications, acceptances and approvals referred to inArticle 37;
2. the accessions referred to in Article 38;
3. the date on which the Convention enters into force in accordance withArticle 43;
4. the extensions referred to in Article 39;
5. the declarations referred to in Articles 38 and 40;
6. the reservations referred to in Article 24 and Article 26, third paragraph,and the withdrawals referred to in Article 42;
7. the denunciations referred to in Article 44.
Done at The Hague, on the 25th day of October, 1980.
R.S., c. 67, Sch.