My Ex Took Our Child to Another Country: What to Do in BC

Finding out that your child has been taken to another country, or kept there after a trip, is frightening. You may not know whom to call first or which court can do anything.

This article sets out the main steps and legal tools in BC. Every case is different, and a lawyer can help you choose the order of steps based on where your child is and what orders already exist.

This article covers the law of British Columbia.

The first steps

Start by securing information. If your child is in immediate danger, contact police. Then collect the details you will need to show who the child is, where they may be, and how they left.

• The child's birth certificate and passport details.
• Any BC order, agreement or court papers about parenting.
• Travel details, such as flights, tickets, messages and the date the child was meant to return.
• The other parent's address, contacts, and any ties to the other country.
• A timeline of events, starting with the date of removal or retention.

Keep copies of everything. Record dates carefully, since timing matters in Hague cases.

The Hague Convention application

BC's Attorney General is the Central Authority under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, and the Convention has the force of law in BC. It applies only to children under 16 and only between countries that are both parties.

You must have had and exercised rights of custody before the removal or retention, and a court order is not required to show this. The Convention decides where the custody case is heard, not custody itself.

To seek a child's return from abroad, you contact the BC central authority, which supplies the application form and sends it with supporting documents, such as a birth certificate, to the central authority abroad. Foreign counsel then starts the court case there, and evidence is usually by sworn affidavit.

Timing and defences

The Convention came into force in Canada on December 1, 1983. Applications are more likely to succeed if filed within one year of the removal or retention, though returns are sometimes ordered later. One year is not an absolute bar.

A court need not order return in some situations. The main ones are:

• the left-behind parent consented or acquiesced;
• there is a grave risk of harm or an intolerable situation;
• the child objects and is old and mature enough for their views to count; or
• the parent waited over one year and the child has settled in the new environment.

These are reasons a court may decline to order return, so it helps to avoid delay and to keep records of what you did and when.

What a BC court can do

A BC court may make a parenting order only if the child is habitually resident in BC when the application is filed, or if listed conditions are met. If the child has been taken abroad, the court's ability to act on a parenting order may be affected, so timing and the child's last home are important.

Where a child is still in BC and you fear removal, a court may order that a person not remove the child from a specified area. If it is satisfied that a person plans to remove a child from BC and is unlikely to return the child, it may order security, surrender of passports and travel records, transfer of property to a trustee, or child support paid to a trustee. These orders do not apply to a relocation.

If the child was wrongfully removed to or retained in BC, the court may make interim orders in the child's best interests, stay the proceeding on conditions, or order a party to return the child and pay reasonable travel and other expenses.

An order made in another place may also be recognized in BC if specific conditions are met, including jurisdiction, reasonable notice, consideration of the child's best interests and consistency with BC public policy.

What to do next

Move quickly, but carefully. Contact the BC central authority at BCCentralAuthority@gov.bc.ca about a Hague application, and speak with a family lawyer about urgent BC orders and about what help may be available in the other country. A lawyer can also tell you whether the other country is a party to the Convention.

Frequently asked questions