Family Law / Divorce Library

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Hague Convention on International Child Abduction

The convention only applies to children under 16 years of age, although that doesn't preclude ordinary family court processes.

The Hague Convention on the Civil Aspects of International Child Abduction facilitates the return of a wrongfully removed children to their habitual residence. Unless an exception applies, return is mandatory.

An application is typically commenced in the state in which the child was taken. In Alberta, this is governed by the International Child Abduction Act.

An application must be brought quickly, otherwise the child could be found to have a new habitual residence.

The courts are encouraged to make a decision within a 6-week timeline, but save for some exceptions, there is an automatic return if a decision has not yet been made after one year. If action has not yet been taken after one year, there will be a review of whether the child is "well settled". The child will not be "settled" if their stay a result of a parent breaching an order for return (RVW v CLW, 2021 ABQB 531 at para 75).

In determining a child's habitual residence where they have a history in multiple countries, Canada takes a hybrid approach where courts consider both the circumstances of the child and the intention of the parents at the time that the child left their original country (Office of the Children’s Lawyer v Balev, 2018 SCC 16).

Courts can refuse to return a child where there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place them in an intolerable situation. The person alleging harm has the onus to prove that risk (CCO v JJV, 2019 ABQB 461 at para 30). The physical or psychological harm has to be a degree that it also amounts to an intolerable situation, being more than an ordinary risk, rising to a weighty risk, substantial, not trivial risk of harm (Thomson v Thomson, 1994 CanLII 26 (SCC) at para 28). An intolerable situation could include where neither parent resides in the original jurisdiction (Pohl v Pohl, 2019 ABCA 71).

Courts can refuse to return a child where the child objects to being returned and has attained an age and degree of maturity where it is appropriate to take into account that child's Views. However, this factor is discretionary, courts may disregard views where they would undercut the fundamental objectives of the Convention. As stated in Den Ouden v LaFramboise, 2006 ABCA 403 at para 16:

"However, to exercise the court’s discretion permitted by Article 13, and give effect to feelings of children who find themselves in such situations would undercut the fundamental objective of the Hague Convention. That would lead other parents to believe that they may abduct their children, go to another country, settle there, and then rely on their children’s contentment to avoid being returned to the jurisdiction which should properly deal with their custody and residence. We cannot encourage such conduct."

A list of countries which have ratified the Convention can be found at

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Content by Ken Proudman of BARR LLP (Edmonton)

Last updated on November 12, 2022

Last complete review of all content on this page on November 12, 2022

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