Canada: International Child Abduction And Hague Convention Applications

Last Updated: April 13 2018
Article by Kirsten M. Hnatuk

It is every parents' worst nightmare. It is what we as family lawyers assure our client's is "extremely rare". "It", being a situation when one parent unilaterally retains the children in a country where the children are not habitually resident, or where one parent flees to another country with the children.

Within the past year I have appeared before the court on this type of matter on two occasions. In both situations I represented clients who lived overseas, and desperately sought to have their children returned to their country of habitual residence after the children had been wrongfully retained in Canada. Although rare, we are faced with these types of fact scenarios from time to time. This article is meant to provide some guidance in the event that you are faced with this issue. You will also want to familiarize yourself with The Queen's Bench Rules 15-69 through 15-77 as they set out the procedure for these types of applications.

The Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"), is a multi-national treaty which seeks to protect children from cross-border abductions and retentions by providing a procedure under which children can be returned to their country of habitual residence. According to the website for the Hague Convention on Private International law (www.hcch. net/en/home), there are presently 98 contracting states to the Hague Convention. Canada is a signatory to the Hague Convention and The International Child Abduction Act, 1996 SS 1996, c I-10.11, adopts the Hague Convention in Saskatchewan. The first step in your application will be to ensure that the country where the children are habitually resident is also a signatory to the Hague Convention.

Both clients had contacted the Central Authorities within their countries and made applications for the return of their children before retaining me. Each signatory to the Hague Convention has a Central Authority, which is a government agency providing information and assistance with Convention applications. In both cases I was involved with, the Central Authorities reached out to the parent who was unlawfully retaining the children in Canada, seeking a voluntary return, to no avail. This is when I was retained. It is worth noting that in bringing a Hague Application you must serve notice of such on the Central Authority in Saskatchewan.

In bringing an application for the return of children under the Hague Convention, you must first demonstrate that the children are habitually resident in the foreign jurisdiction. The case of Karutowska-Woof v Karutowska 2004 CanLII 5548 (ON CA), is instructional on this point, stating at paragraph 8 that a determination of habitual residence is factual and is the place where one resides for some time with a "settled intention" to stay in that place.

Once habitual residence has been established you must demonstrate that the removal of the children was wrongful. The Supreme Court of Canada in Thomson v Thomson 1994 3 SCR 551 observed at pp. 592 that, "a wrongful retention begins from the moment of the expiration of the period of access, where the original removal was with the consent of the rightful custodian of the child". In the case of S.K. v J.Z. 2017, SKQB 136, the parties were on a family holiday from Australia to Canada. The father returned to Australia on the understanding that the mother and children would follow on a specified date; airplane tickets had been purchased. After the father left Canada the mother advised that she was terminating her relationship with him and refused to return the children to Australia on the agreed upon date; this began the unlawful retention of the children in Canada.

The Hague Convention allows exceptions to the mandatory return procedure for children wrongfully removed/retained. One exception is Article 12 of the Hague Convention, that a child is "now settled". Article 12 states that "if a child has been wrongfully retained for less than one year, the authority shall order the return of the child forthwith." If proceedings to return the child commence after the one year expiration date, the court shall also order the return of the child, unless it is demonstrated that the child is now settled in the new environment.

Article 13(a) of the Hague Convention states that the judicial authorities are not bound to order the return of a child if the person not exercising access at the time of the removal/retention had consented or acquiesced. The Ontario Court of Appeal, in the case of Katsigiannis v Kottick-Katsigiannis, 2001 55 O.R., held that the abducting parent must show "clear and cogent evidence of an unequivocal consent" (para. 43). Further, acquiescence is a question of the aggrieved parent's subjective intention, not one of the outside world's perceptions of that intention, (Katsigiannis supra at para. 48). In S.K. supra, Mr. Justice Dufour allowed a viva voce hearing (which is allowed in rare circumstances under the Hague Convention), as the central issue was whether the aggrieved parent had consented or acquiesced to the retention of the children. The parties' affidavits were diametrically opposed and credibility was at issue. The viva voce hearing allowed for an assessment of credibility, and confirmed the father's subjective intention that consent was not provided.

Lastly, Article 13(b) of the Hague Convention directs that a child shall not be returned to their country of habitual residence if there is a grave risk that the return would expose the child to physical or psychological harm or otherwise put the child in an intolerable situation. The case law is clear that the risk must be substantial and not trivial. In the case of Pollastro v Pollastro, 1999 CarswellOnt 848, (Ont. C.A.), the court stated that the focus on this exception is on the danger of returning a child to its place of habitual residence, and not the benefit of allowing a child to remain. The focus must be on how the particular request to return the child exposes that particular child to a substantial risk of substantial harm. It is important to keep in mind when bringing a Hague Application that the court is not engaging in a "best interest test", as they would in a custody and access application. It is anticipated that the contracting states to the Hague Convention will properly take the best interest of the child into account upon the child's return to their country of habitual residence.

If you bring a Hague Application you should provide the court with sufficient evidence as to the legal and other costs that your client has incurred as a result of the retention of the child, as the Hague Convention allows for generous costs to successful applicants. Article 26 of the Hague Convention grants the court authority to direct that the person responsible for any wrongful removal or retention, " pay any necessary expenses incurred by or on behalf of the applicant, including travel expenses and costs incurred or payments made for locating the child, the costs of legal representation of the applicant and those of returning the child". Rule 15-77(1) of The Queen's Bench Rules grants further authority for costs on Hague Convention applications.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions