Overview and Assessment of
Approaches to Access Enforcement
CANADIAN LAWS AND PROGRAMS (cont'd)
Abduction by a custodial parent is perhaps the most drastic method of denying access to the non-custodial parent. The RCMP’s Missing Children’s Registry prepares an annual report on the number of cases of children reported missing based on statistics from the Canadian Police Information Centre. The Registry’s report for 1997 indicates that there were 433 parental abductions in Canada that year: 186 in Ontario; 78 in Quebec; 63 in British Columbia; 43 in Alberta; 21 in Manitoba; 16 in Saskatchewan; 11 in Nova Scotia; 5 each in New Brunswick and Prince Edward Island; 2 each in Yukon and the Northwest Territories; and 1 in Newfoundland (RCMP, 1997). An undetermined number of these abductions would be abductions by custodial parents or primary caregivers. It is likely that in the majority of parental abductions from Canada to countries that are parties to the Hague Convention on the Civil Aspects of International Child Abduction, primary caregiver mothers are the abductors.(136)
Remedies for parental abduction are considered separately in this report because parental abduction calls for distinct approaches. The focus of interventions is location and return of the child. There are separate criminal sanctions for abduction and international organizations are involved in some cases. As well, there are distinct measures to prevent parental abduction.
As indicated in Appendix A, most jurisdictions have measures aimed at preventing a custodial parent from removing the child from the jurisdiction without notice. The Divorce Act authorizes a court to order that a custodial parent must provide at least 30 days’ notice of a move as well as information on the date of the move and the child’s new place of residence. Alberta has amended its Provincial Court Act to include a similar provision, which previously was only found in The Domestic Relations Act. Under Saskatchewan’s legislation a court making a custody and access order under the Act must order the custodial parent to give notice to the non-custodial parent of a move and to furnish the new address. The mandatory nature of Saskatchewan’s provision is problematic in cases of domestic violence, when requiring the custodial parent to furnish the new address may create a risk of harm. Saskatchewan should amend the provision to provide for an exception in such cases.(137)
Even in the absence of explicit statutory authority, courts have ordered custodial parents to give notice of a move and information on the new address, using their general powers to order custody and access subject to such terms and conditions as are in the best interests of the child.(138)
As indicated in Appendix A, legislation in Manitoba, New Brunswick, Newfoundland, the Northwest Territories, Nunavut, Ontario, Prince Edward Island, Saskatchewan and Yukon provide that a court, when satisfied that a person prohibited by court order or agreement from removing a child from the province or territory proposes to remove the child, to make an order requiring that person to a) transfer property to a trustee to be held subject to terms and conditions, b) make any child support payments to a trustee, c) post a bond payable to the applicant, or d) surrender his or her passport, the child’s passport or other travel documents. Saskatchewan’s law further provides that the court may vary or make a custody or access order in this context but does not say that this is subject to the best interests of the child. Saskatchewan’s law should be amended to clarify that custody or access orders or variations in this context, as always, must be in the best interests of the child. Alberta, British Columbia, Nova Scotia and Quebec should consider enacting a provision similar to that of the other provinces and territories for cases of likely violations of a non-removal order or agreement.
Location of the Child
As indicated in Appendix A and discussed above, most provinces and territories provide orders directing law enforcement officers to locate and apprehend a child. These provisions may be invoked for abductions. As well, Appendix A indicates that the federal government and every province and territory, except Alberta, have enacted legislation about the release of information to help locating a child to enforce of access orders. Most provinces and territories provide that the information goes to the court. It has been pointed out that requiring that the information go to the court first
"ensures that any abuse or domestic violence factors of which the person or public body is aware can be drawn to the court’s attention and taken into consideration in determining whether information as to the child’s location should be given to the applicant" (MacPhail, 1999: 16). British Columbia, Nova Scotia, Quebec and Saskatchewan have provisions that permit the
information to go to the applicant rather than to the court. They should consider amending their provisions to provide that the information goes initially to the court. Alberta should enact a provision allowing an order for release of information to the court to facilitate access enforcement. The court may then give the information to such person or persons it considers appropriate.
Return of the Child
As indicated in Appendix A, with the exception of Alberta and Nova Scotia, all provinces and territories have enacted legislation specifically authorizing the courts to order the return home of a child who has been wrongfully removed to or retained in that province or territory, or when the court does not have jurisdiction. These statutory provisions may be applied in cases that are not governed by the Hague Convention on the Civil Aspects of International Child Abduction, including cases from within Canada. Alberta and Nova Scotia should consider enacting similar provisions. Quebec’s legislation, by its terms, applies within Canada but is not currently in effect for cases involving other Canadian jurisdictions. Quebec should consider making it so.
The Hague Convention on the Civil Aspects of International Child Abduction came into force in Canada on December 1, 1983, and was extended to each of the provinces and territories as each enacted implementing legislation, as set out in Appendix A. Each province and territory (including Nunavut) has its own Central Authority. The Central Authority deals with abduction applications in the province or territory to which or from which a child has been abducted. As well, there is a federal Central Authority, who deals less directly with cases, and oversees and facilitates the operation of the Hague Convention, collects statistics for special commissions, and provides assistance as needed. The Convention applies to international abductions of children under the age of 16 between contracting states, when the abduction took place after the
Convention came into force in the relevant states.(139) The Convention does not apply to interprovincial abductions.
Article 12 provides that when a child has been
"wrongfully" removed to or retained in a contracting state, an order will be made for return of the child to the country of his or her habitual residence, unless the application for return has been brought more than a year after the wrongful removal or retention and the child is now settled in his or her new environment. Further exceptions to the rule of automatic return are set out in articles 13 and 20.(140) Article 20 provides:
"The return of the child under the provisions of Article 12 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." Although the Convention protects rights of custody and access, it provides for return of the child only when there has been a
"wrongful" removal or retention, and a removal or retention is
"wrongful" only when it breaches
"rights of custody."(141) Access rights are not given the same level of protection, and a parent who has only access rights may not use the Convention to obtain a return of the child who has been removed by the custodial parent.
Access rights are not defined in the Convention, but article 5(b) does say that
"‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence." A parent who has only the right to visit and be visited by the child is not entitled to an order for return, but is entitled to assistance from the Central Authority under article 21, as follows:
An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation, which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
Because this provision does not impose any mandatory duties on the Central Authority to enforce access rights, only an obligation to promote co-operation, the Convention has not been an effective tool of access enforcement.(142) There are few reported cases on the access provision and relatively little attention has been given to it.(143) In a detailed 22-page manual prepared by the Canadian government for parents dealing with international child abduction, only one brief paragraph addresses the enforcement of access rights (Canada, 1998d:10).
The enforcement of rights of access under the Convention could be improved if Legal Aid were available for non-custodial parents trying to enforce their access rights in Canada. Governments should consider extending Legal Aid for such cases. Some provinces provide Legal Aid to foreign parents in access enforcement cases, depending on financial eligibility and the merits of the case.
In some cases, a non-custodial parent (or parent who does not live with the child) may be considered to have
"rights of custody" and be entitled to have the child returned home. Article 5(a) of the Convention provides that
"‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence." When the non-custodial parent has more than the right to visit the child and shares the right to determine the child’s place of residence, then he or she may have
"rights of custody" within the meaning of the Convention and be entitled to an order for return of the child. The weight of international authority supports the view that removal of the child by the custodial parent in violation of an order, agreement or law violates the other parent’s
"rights of custody" (Eekelaar: 1982, 309-10), and the courts in many
countries have ruled to this effect (Silberman: 1994). In Canada, however, this issue has not been settled.
The first Convention case heard by the Supreme Court of Canada was Thomson v. Thomson.(144) In that case, a mother with interim custody brought the child to Canada in violation of the interim custody order, which said that the child was not to be taken from Scotland. On the issue of whether the removal or retention was wrongful, the Supreme Court of Canada ruled that it had been because the non-removal clause of the mother’s interim custody order preserved the jurisdiction of the Scottish court to determine the issue of custody on the merits in a full hearing. Therefore, the Scottish court became an institution with
"rights of custody" immediately before the removal of the boy, and the mother’s breach of those custody rights constituted a wrongful removal within the meaning of the Convention. The mother’s removal did not breach the custody rights of the father, who had only an interim access
order, but it did breach the custody rights of the court.
The Court was careful to limit its decision on the wrongful removal issue to cases of interim custody, and suggested that a final custody order with a non-removal clause would not give rise to rights of custody of the court or the non-custodial parent. In a subsequent decision, the Court suggested in obiter dicta that a non-removal clause in a final order would not give a non-custodial parent rights of custody under the Convention.(145) There remains uncertainty about this in Canada. The central authorities of Ontario and British Columbia indicated that they treat non-removal clauses in final orders as creating rights of custody under the Convention and leave it for the courts to determine otherwise.(146) This is consistent with the reported practice of central authorities of most parties to the Convention, according to which central authorities reject applications only when they manifestly fall outside the scope of the Convention, for instance when the age requirement is not met. Any doubt about the rights of custody or the habitual residence of the child is left for the court to dispel (Hague Conference, 1997).
In Thorne v. Dryden-Hall, the British Columbia Court of Appeal ruled that two children were wrongfully taken from England by their mother, who had been granted a residence order by the English court. The father had been granted a contact order and, under English law, retained parental responsibility. Under English law the mother could not remove the children from the country without the consent of the father or leave of the court. The mother’s residence order was not an interim order, as in the Thomson case, but the B.C. Court of Appeal ruled that the mother’s removal of the children violated the rights of custody of the English court.(147) This case may be distinguished from a case involving a non-custodial parent with a final order and a non-removal clause or law because here the father had continuing parental responsibility. In the author’s view, such a distinction is invalid (Bailey, 1996), but it is not yet clear whether this view will be accepted in Canada.
In E.M.M. v. G.A.M., the parents had agreed to joint legal custody with the mother having physical custody and responsibility for day-to-day care. The parents agreed to consult one another on issues related to the children’s health, education and welfare, and to notify the other of a change of address. The mother removed the children from New York to Manitoba without consulting with or notifying the father. The court ruled that the mother’s removal of the children violated the father’s rights of custody under the Convention.
"The right to determine residence" is a concept divisible from
"physical custody" or
"the right to care of the person," whether under the Convention or New York law.
"Joint legal custody" under New York law does create a
"right of custody" within the meaning of the Hague Convention and includes the right to determine residence.(148)
Again, the question of whether a non-residential parent with joint legal custody should be in a position that is different from that of a non-custodial parent with a final non-removal order needs to be answered in Canada.
Central authorities should continue to treat non-removal orders, agreements and laws as giving rise to rights of custody and leave it for the courts to determine otherwise. It is hoped that courts in Canada will clarify this issue and extend to non-custodial parents with non-removal orders the same right of return that is given by other parties to the Convention.
The Criminal Code provisions on parental child abduction may apply to both domestic and international cases. Custodial parents may be subject to punishment for parental child abduction under the Criminal Code.(149)
283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, in relation to whom no custody order has been made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction.
The provisions are aimed at violations of rights of custody rather than rights of access, but have been applied to enforce access in limited circumstances. In R. v. Petropoulos (150), the mother had access for three days each week and the custodial father was found guilty of parental child abduction when he took the child from British Columbia to Ontario. The court reasoned that the mother’s access was so extensive as to amount to joint custody, which triggered the Criminal Code abduction provision.
More recently, in R. v. Dawson (151), the Supreme Court of Canada addressed the issue of whether a de facto custodial father could be guilty of
"taking" his child with intent to deprive the access mother of possession of the child under section 283 of the Criminal Code, when the mother never had physical possession of the child because the father removed the child from Canada prior to a court-ordered access visit. The trial judge acquitted the father, reasoning that the father could not be guilty of taking the child because at all material times the child had been legally in the care of the father. The Court of Appeal for Nova Scotia overturned the acquittal and ordered a new trial. The Supreme Court of Canada, in a 5:2 decision, dismissed the father’s appeal.
The majority of the Supreme Court of Canada did not discuss the policy question of whether criminal sanctions are an appropriate measure to use for access enforcement. In her dissenting opinion, McLachlin J. discussed whether the criminal law should be applied to enforce rights of access. Penal sanctions offer one means of deterring custodial parents from frustrating access by abducting the child. McLachlin J. argued against criminalizing interference with access rights, as opposed to custody rights, and stated that civil sanctions were a more appropriate remedy. MacPhail discusses the situations in which criminal charges for abduction may help, but her discussion focusses on abduction by the non-custodial parent (MacPhail, 1999: 1-9). The circumstances in which criminal abduction charges against the custodial parent are available and appropriate for the enforcement of access rights should be further considered and clarified.
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