This Convention supports stability for the child and deters unilateral action by a parent by recognizing that custody rights should be determined in the jurisdiction of the child’s habitual residence.
Where your client is a Saskatchewan resident and the child has been taken to another country, please review How to apply for the return of a child.
A party alleging that a child has been wrongfully taken to/retained in Saskatchewan may bring an application to the Court of Queen’s Bench in Saskatchewan under Article 12 of the Convention. The party would seek an order returning the child to the jurisdiction of his/her habitual residence. Left-behind parents in other countries usually retain a Saskatchewan lawyer to assist in bringing the return application to court.
Where a hearing occurs in Saskatchewan on an application under the Convention, it will be important to determine what and how evidence will be presented. Usually affidavit evidence is sufficient. However, if the testimony of a party out of country is required, then issues of capacity to travel or ability of a court in another jurisdiction to assist in providing telecommunications support for telephone or video testimony may need to be pursued.
Section 2 of The Queen’s Bench Act, 1998 defines family law proceedings as including actions or matters brought pursuant to The International Child Abduction Act, 1996. Part 15 of the current Queen’s Bench Rules applies. Rule 15-70 directs that the general procedure and practice of the court shall be applied with any necessary modification. Division 10 of Part 15 deals specifically with proceedings pursuant to the Hague Convention. Rule 15-71 states that applications should be commenced by Notice of Application.
It should be noted that the Convention speaks of securing the “prompt return of children wrongfully removed to or retained in any Contracting State.” (Article 1) The underlying thrust of the Convention, again, is to have substantive decisions about custody and access made in the jurisdiction of the child’s habitual residence. The court in the receiving jurisdiction is charged primarily with determining if the child has been taken from or retained outside his/her habitual residence. If the court determines that a wrongful taking or retention has occurred, the Convention requires the Court, with limited exceptions, to order the return of the child. The scope of enquiry is therefore somewhat narrow. Article 2 of the Convention also directs Contracting States to “use the most expeditious procedures available.” In past and current practice, a Petition has not usually been required to initiate proceedings under The International Child Abduction Act, 1996 and is specifically not required pursuant to the new Rules.
The application should address the following requirements of the Convention:
- the existence and nature of the applicant’s custodial rights (court ordered or statutory, joint or sole custody.) Keep in mind that where the applicant is asserting custodial rights based on statute, a copy of the relevant foreign legislation should be included in the application. Article 23 of the Convention states that, “No legalization or similar formality may be required in the context of this Convention.” In practice it is advisable to have the requesting Central Authority provide a statement of the law rather than just providing the court with a copy of the foreign legislation.
- Evidence that the applicant was actually exercising his/her custodial rights.
- Evidence regarding the child’s wrongful removal or retention, in contravention of the applicant’s rights of custody.
- Evidence regarding the child’s habitual residence in the requesting State.
(Note also the requirements for an affidavit, set out in Rule 15-72)
The Convention states that if the Convention requirements have been met, and the child has been gone from his/her habitual residence for less than one year, the Court shall order the return of the child (Article 12). If the child has been gone for over a year, the Court shall order the return of the child unless the Court is satisfied that the child is settled in his/her new surroundings.
Challenge to an application for a return order
The abducting parent can oppose the application for return of the child on the basis that the above requirements were not met. There are additional grounds that that abducting parent can argue:
- The child has been gone over a year and is settled in her/his new home.
- The applicant consented to, or acquiesced in the removal/retention of the child.
- Returning the child would result in the child being exposed to a grave risk that would expose the child to physical or psychological harm or otherwise put the child in an intolerable situation.
- The child objects to being returned and has attained an appropriate age and degree of maturity.
- The return of the child “may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” (Article 20)
The Hague website has a database of international case law which may be useful.