By John T. Syrtash, Associate, Garfin Zeidenberg LLP, a Toronto family law lawyer for 40 years.
If you are facing a parental kidnapping, child abduction to the USA, or other parental international child abduction:
1. Call the Police. Explain the urgency of the abduction and give as much information as needed. Amber alerts are now being made to every cell phone. An Amber Alert is issued when a child is missing or abducted, and the Police fear that the life or health of the child is in imminent danger. The success rate has been very high in the jurisdictions where they are used, despite the loud complaints of being woken up in the middle of the night.
2. So, in what situations is an alert not issued involving children? It’s common for the Police not to “get involved” if a domestic dispute has triggered a child’s disappearance, particularly when the parent knows where to find the child. Recently, an Ontario mother left her home with two young girls “on vacation” to the United States but failed to return. The husband knew where the children were. When local Police were phoning the mother, she complained of the father’s alleged physical and verbal abuse. In such situations, a parent should turn to a lawyer with parental child abductions.
3. A parent left behind can apply to any family law Court in Canada on an emergency basis and without notice to the other parent for a temporary custody Order, an Order for the child’s return, and police enforcement. (The exception is where the “abducting” parent has already obtained a temporary emergency court Order giving him/her sole custody.) Typically, the Court will then also order every police department where the child might be to retrieve the child. Once the child is recovered, the abducting parent is served with the Order and an Application for custody and other relief, with a return date of no more than seven days to hear his/her side of the reason for leaving and the parenting issues involved.
4. There is a danger of bringing such an emergency motion without notice. Suppose the parent fails to recite facts that are embarrassing to the parent applying, such as an argument’s details. In that case, when a review of the “without notice” Order comes back before the Court a few days later, the Court may set aside its’ own Order. One needs to reveal everything, even the allegations you anticipate that the leaving parent will argue. Recently a Newmarket Ontario family law Judge set aside his custody Order within three days after making it. Why? Well, when the mother made the initial complaint and applied for such an emergency “without notice” Order, this mother “forgot” to mention that she was a cocaine addict who had a lengthy history of drug abuse in the child’s presence. So, when applying for such an Order, make sure that the evidence you provide to retrieve an abducted child also informs the Judge about the worst things about yourself that the other parent may allege. Even if you don’t believe these allegations are accurate, you can always explain your response to such allegations. However, you must mention them or any illnesses or special needs the child may have.
5. Suppose your child has been abducted into the United States. In that case, there are special legislative procedures in Canadian family law to expedite a child’s return. In Ontario, Judges can grant custody to a child and his/her return with police enforcement. If the parent “left behind” knows where the child is located, his/her lawyer will courier a certified copy of the Ontario Order to a competent family law lawyer in the State where the child has been taken. That lawyer can then register the Ontario Order in family law Court, and, presto, it becomes an Order of that State. The Police of that State will subsequently enforce the Order virtually anywhere in the United States under American law under the Uniform Child Custody Jurisdiction and Enforcement Act.
6. If the child is abducted to another Province, of Canada the same procedure can be followed, i.e., obtain an emergency Custody Order with police enforcement and retain a lawyer in that Province to have it registered in its Court, with the enforcement of the local Police.
7. If the child is abducted to a country other than Canada or the USA, then find out if that country has a treaty with Canada for the return of abducted children: https://stepstojustice.ca/steps/family-law/
8. Suppose the child has been abducted to a country on this list. In that case, your lawyer can begin enforcement of that treaty by notifying the Provincial office that processes such foreign abduction claims under the Hague Convention for the Civil Aspects of International Child Abduction. In Ontario, you or your lawyer would contact the Ministry of the Attorney General, Central Authority for Ontario for the Civil Aspects of International Child Abduction, PO Box 600, Steeles West Post Office Toronto, ON M3J 0K8.Tel.: 416-240-2411, Fax: 416-240-2411. The Courts of some foreign States honour this Convention more strictly than others. The worst countries Judges that fail to comply with the treaty, although they signed it, are Argentina, Bahamas, Brazil, China, Dominican Republic, Ecuador, India, Japan, Jordan, Morocco, Peru, and the United Arab Emirates. However, Israel is a signatory and very compliant with the Convention. It is also imperative to retain a competent family law lawyer with a great deal of child abduction experience in the foreign country where the child was taken. In my experience, the legal fees for both in and outside of Canada together will cost between $30,000-$40,000. Be careful: any application under the Hague Convention must be filed within one year of the child abduction.
9. Where a child is abducted to a country that is not a member of the Hague Convention, then your lawyer will obtain an Order to return the child from a local Court and send a certified copy to a lawyer who is highly competent to prosecute such claims in that country. The problem is that when you are applying to such a country, its Judges tend to be very jealous of children. These children may also be citizens of that country. In certain cases where corruption is rife, bribes are not unusual Such Judges may not be as cooperative as they would in Canada or the United States. For instance, if the child is removed to India, a non-signatory Country, then the network and skill of the Indian lawyer retained and the bias of the Judge presiding will make all the difference.
10. Finally, an Order by a foreign Court to return the child to Canada is often challenged in a Canadian Court where the parent left behind is accused of abusive conduct against the other parent or the child removed. Moreover, suppose the child was taken from a country with family laws based on Sharia law. In that case, the Canadian Court will not likely return the child where a child and woman’s rights may not be the same or very similar to Canadian family law. Canadian Judges will take the position that returning a child to such countries would be inappropriate, if not dangerous.
John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash,
Associate
GARFIN ZEIDENBERG LLP
Yonge-Norton Centre
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
Fax: (416) 512-9992
email: jsyrtash@gzlegal.com
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