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Time is a key factor in child abduction cases

When it comes to parental abduction cases involving the Hague Convention, time is a crucial factor for several reasons, Toronto family lawyer Erin Chaiton-Murray writes in Lawyers Weekly.

All applications for the return of a child pursuant to the convention are intended to be brought to a quick resolution, Chaiton-Murray, Senior Associate with Fogelman Law, writes in an article for the legal publication.

“To achieve this goal, a focus on timing at various stages is required by all parties and by the courts,” she says.

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty signed by Canada in 1980 that is incorporated into Ontario law as a schedule to s. 46 of the Children’s Law Reform Act, writes Chaiton-Murray. It facilitates the prompt return of children who have been “wrongfully removed” to their habitual residence, where appropriate custody and access arrangements can be made.

Once the clock starts ticking for a parent seeking the return of a child, they must act quickly to avoid any claim being made by the other parent that they have acquiesced to the child’s relocation, or otherwise consent to the removal in any way, says Chaiton-Murray.

“That parent must immediately commence an application in the jurisdiction to which the child has been taken seeking an order for their return,” she writes.

“Once the application is commenced, the convention itself requires that the matter be addressed in a timely manner. Specifically, article 11 requires administrative authorities to act expeditiously and suggests that a decision should be reached within six weeks of the date of the commencement of proceedings,” says the article.

“The importance of time is also highlighted in article 12 of the convention, which provides that if one year or less has passed, the court must automatically order a return of the child unless an exemption is found to apply. When more than a year has passed from the date of the alleged wrongful removal until the hearing of the matter, a review of whether the child is now ‘well settled’ in the new state is triggered,” writes Chaiton-Murray.

On the side of the removing parent, time matters in a different way, she says.

“That parent is well advised to act quickly to commence a custody/access proceeding in the jurisdiction to which the child has been taken,” says the article. “Delay or inaction on the part of that parent in taking steps to legalize his or her custody and access rights to a child will likely be perceived negatively by the court.”

 

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