Enforcing an Out-of-Province Custody Order in Ontario

If you already have a custody order from somewhere else and the child is now in Ontario, or you are in Ontario and the child has been taken away, the practical question is what steps work. The answer depends on where the order came from, where the child is, and what the order says.

This article explains the main routes: police enforcement within Canada, the Hague Convention for international cases, and starting or transferring a case. Since custody and access are now called decision-making responsibility and parenting time, you may see either set of words in older orders. Because the rules for recognizing orders from other places depend on the details, a lawyer should confirm your options.

Start with where the order and the child are

Parents who were never married, or who are not divorcing, cannot get a Divorce Act order and need a parenting order under Ontario's Children's Law Reform Act. Which law applies to your order affects how it is enforced, so confirm this early.

Orders within Canada

If the child has been taken to another province or territory, the Hague Convention does not apply. Ontario says to contact that area's police about enforcing your Ontario order, and police may be able to enforce a Divorce Act order in another province or territory.

For an order that comes into Ontario from another province, how an Ontario court recognizes and enforces it depends on the type of order and the facts. Ontario's Children's Law Reform Act has provisions on this, and a lawyer can confirm how they apply to you.

A Divorce Act court in a province may transfer a parenting application to a court in another province if the child is habitually resident there. A family case involving parenting time or decision-making responsibility should usually be started where the children live.

When a child is taken out of the country

The Hague Convention protects children under 16 from wrongful removal or retention and aims for their prompt return to the state of their habitual residence. Ontario adopted it into Ontario law through s. 46(2) of the Children's Law Reform Act. It applies only if the country the child was taken to is a member, and Ontario says Canada is one of 101 member countries.

Under Article 12, where a child has been wrongfully removed or retained, the court shall order the return of the child forthwith. A Hague return order is not a custody determination, and the return court does not decide decision-making responsibility or parenting time on a best-interests basis.

A court can refuse return in limited situations.

• The child is now settled in the new environment, which applies only where the application was brought one year or more after the wrongful removal or retention.
• The person opposing return proves the left-behind parent consented to or later acquiesced in the removal or retention.
• There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
• The child objects and has reached an appropriate age and degree of maturity.

Habitual residence is decided using a hybrid approach that looks for the focal point of the child's life, combining parental intention with the child's circumstances, without rigid rules or presumptions.

Who to contact

To start a Hague application in Ontario, contact the Central Authority for the Province of Ontario at the Ministry of the Attorney General, P.O. Box 600, Steeles West Post Office, Toronto, ON M3J 0K8 (416-240-2411, Hague.Abduction@ontario.ca). If you believe your child has been abducted, contact local police. If the child is taken outside Canada, ask police to contact the RCMP's National Centre for Missing Persons and Unidentified Remains, and contact Global Affairs Canada Consular Services at 1-800-387-3124, available 24/7.

If you fear a child may be taken out of the country, call police right away. If an order is not followed without good reason, an Ontario court can take action against the person who did not comply, including a fine or jail.

What to do next

• Gather the order and any agreement, plus proof of where the child lives and where the child was taken.
• Work out whether the child is in Canada or in another country.
• Contact police if the child has been taken or you fear removal.
• For an international case, contact Ontario's Central Authority.
• Speak to a lawyer about whether to enforce, start a case in Ontario, or ask for a change.
• Remember that a court order can only be changed by a new decision from the court.

Frequently asked questions