Vancouver Hague Convention Lawyer aka International Child Abduction

The law governing international child abduction is governed by the Hague Convention. Kelly Russ is a Vancouver Hague Convention Lawyer and has litigated cases involving the Hague Convention. The law governing international child abduction is governed by the Hague Convention. Kelly Russ is a Vancouver Hague Convention Lawyer and has litigated cases involving the Hague Convention. See: Medina v. Pallett, 2010 BCSC 259 (CanLII); Allibhoy v. Tabalujan, 2015 BCSC 37 (CanLII); van Dijk v van Dijk-DeVos, 2019 BCSC 1968 (CanLII); Johnson v Schubert, 2018 BCSC 74 (CanLII)

Canada is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”). The Convention is incorporated into the law of British Columbia under section 80 of the BC Family Law Act.

For more information concerning the Convention, see: https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction

When considering the views of children in the context of the Convention, see: Office of the Children’s Lawyer v. Balev - 2018 SCC 16 as applied in the case of van Dijk v van Dijk-DeVos, 2019 BCSC 1968 (CanLII).

The Convention establishes a procedure for facilitating the return to their home states of children who have been wrongly removed to, or wrongfully retained in, contracting states (signatories to the Convention).

Under the Convention, the removal or retention of a child is considered wrongful (illegal) if it is in breach of rights of custody under the law of the jurisdiction in which the child was habitually resident immediately before the removal or retention, and those custody rights were actually exercised (Article 3).

The definition of “habitually resident” in the Family Law Act (BC) is not applicable in proceedings under the Convention. Habitually resident is not defined in the Convention, and determination of whether a child was habitually resident in a specified state at the time of the removal or retention is a question of fact to be decided by reference to all of the facts and circumstances in each case.

The relevant considerations are the actions and intentions of the parties, as well as the situation and lifestyle of the child, which reveal whether the intention is that the child remain resident in the specified state for the foreseeable future. The length of time a child has been resident in the specified state may be relevant, but it is not necessarily determinative of the issue.

The specified state may become the habitual residence of the child through the actions and intentions of the parties within a relatively short time.

A key question is: Has the child resided in the specified state with a sufficient degree of continuity to be properly described as settled?