Child abduction isn't usually the sort of nightmare most parents might imagine. It's not a stranger in a white van taking off with your kids. Instead, it's more often where one parent abducts their own child without the consent of the other.
It's important to know in these situations what you can do to bring your child home.
Whether your child is abducted nationally within Canada or internationally makes a difference. If your child stays within the country, you can contact the police elsewhere in the country. They will very likely intervene if they obtain a copy of the custody order and it is clear that one parent is violating it.
Calling the police is a serious step, and one that shouldn't be taken lightly. But if you think your child has been abducted you shouldn't hesitate to get the authorities involved. It's important to try alternative resolution methods if possible, such as trying to communicate directly with the absconding parent, having the parties' lawyers or some neutral third-party resolve the matter through direct communications, but if that fails calling the police may be your only option.
Things get trickier if a child is taken abroad.
What to do next depends on whether or not your child has been taken to a country that has signed onto the the Hague Child Abduction Convention. This Convention provides an international collaboration framework to return the child home as soon as possible. The Hague process will determine whether Canada is where your child normally lives---the technical term is "habitual residence". Your child must also be younger than 16 years old, and you have to have been exercising your custody or access rights when the child was taken.
This doesn't mean the international court will decide on custody. They are only deciding where the child habitually resides, and whether to send the child back. What determines this is where they actually live, go to school, have friends, family and so on.
If the country your child has been taken to has signed onto the Convention, you'll have to petition the foreign court. When you do, the government will have resources to facilitate the process to help move things swiftly and smoothly.
Unfortunately, if a parent takes a child to a country that is not a signatory, the custodial parent must petition the foreign court of the jurisdiction where the child was kidnapped where none of those resources set out in the Convention will be in place. This means increased costs, delays and going through the trouble of obtain a lawyer in that country. More concerning is that said country may have laws regarding parental authority or custody which may run counter to the legal values and traditions of the child's home jurisdiction.
Deeper custody issues will have to be sorted out in Canada once a child is returned.
If you need more information on international abductions, the Government of Canada provides a detailed guidebook to help you navigate the difficult time.
There are things you can do before a child is abducted. Indeed, if you fear that your ex may potentially abscond with one or all of your kids, it's always better to be proactive and take these precautionary steps:
The most important step is having a custody judgment from the Court. If you're without a judgment, you're playing with fire.
The judgment should also specify that your child's travel documents and passport should be secured in trust with your attorney. Some countries can issue a passport with the consent of only one parent, so it's important to place your child's birth certificate and other government-issued IDs in a trust or with your attorney as well. Transmit the judgment to Canada Border Services as well as the consulate representing your ex's home country.
At Goldwater, Dubé, we are particularly experienced in handling these matters. If you think we can help you, contact us.