International Parental Child Abduction

Canada

DISCLAIMER: The information in this circular relating to the legal requirements of a specific foreign country is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.

GENERAL INFORMATION: Canada is a federal state comprising ten provinces and three territories. With the exception of Quebec, all provinces or territories are based on a Common Law jurisdiction. Quebec is a civil law province or territory and its laws are codified. Each province or territory administers its own court system.

U.S. citizens are not required to have a passport to enter Canada.

THE HAGUE CONVENTION: The United States is a party to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"). The Convention is an international treaty. Its purpose is to discourage international parental child abduction and to ensure that children who are abducted or wrongfully retained, are returned to their country of habitual residence. The Convention does not address child custody, but determines the jurisdiction in which custody should be adjudicated.

The Hague Convention came into force between the United States and Canada on July 1, 1988. Therefore, Hague Convention provisions for return would apply to children abducted or retained on or after July 1, 1988. Parents and legal guardians of children taken to Canada prior to July 1, 1988 may still submit applications for access to the child under the Hague Convention.

1. Who qualifies to apply under the Hague Convention?

Applicants may qualify to apply for the return of a child under the Hague Convention if:

• The abducted/retained child is currently under age 16;
  
• The child was habitually resident in a convention country immediately prior to the abduction;
  
• The child was retained in/abducted to Canada after the Hague Convention entered into force on July 1, 1988; and
  
• The applicant had and was actually exercising a "right of custody" at the time of the abduction/retention.

2. Who is Canada's Central Authority? What is their role? How can they be contacted?

Each province and territory in Canada has its own Central Authority. If the whereabouts of the child is known or there is reason to believe the child is located in a specific province or territory, applications under the Hague Convention are forwarded to the Provincial Central Authority. If the child's whereabouts are not known, the applications are forwarded to the Federal Central Authority in Ottawa, Ontario.

The following is a list of all Canadian Central Authorities:

3. What attachments/documents does Canada require along with the Hague application form?

Applications may be made in either English or French. In Quebec, documents that are not in English or French should be translated into French. Documentary requirements may vary slightly among the Canadian Central Authorities. Generally speaking, cases will not be acted upon until the Central Authority receives all of the required documents.

Processing of Hague applications varies slightly in each province and territory. For details, please contact the Office of Children's Issues or the applicable Canadian Central Authority office.

To apply for the return of a child or access to a child under the Hague Convention in Canada, applicants must submit the following items.

An application form. The U.S. Central Authority application form may be found in the 2001 edition of the U.S. Central Authority's brochure, "International Parental Child Abduction." It may also be obtained from the Department of State's Office of Children's Issues or downloaded from our web site at "children's_issues.html". Please refer to pages 37 through 40 of the brochure for instructions on completing the application form.

Evidence of habitual residence. A statement from the applicant that clearly explains the habitual residence of the child and the circumstances surrounding the wrongful removal or retention of the child. If the application is not made within 12 months of the removal or retention, the applicant should include an explanation for the delay in making the application.

Information on the location of the child. If you do not know the exact location, please include any information that would assist the Royal Canadian Mounted Police (RCMP) in locating the child.

Evidence of rights of custody. An Affidavit of Law from a lawyer/attorney, that clearly explains the applicant's rights of custody at the time of the removal or retention as defined in Article 3 of the Convention. Alternatively, a copy of the relevant Statute, Civil Code or Applicable State Law at the time of the removal or retention may be sufficient. Note: It is not necessary to obtain a post-abduction court order of sole custody to apply for assistance under the Hague Convention. Obtaining such an order may actually complicate your case.

Photos of the child and of the taking parent. There is no requirement for the size of the photograph, but the photograph should be as current as possible and show enough detail to assist government officials who will use the photographs to locate and identify the child and taking parent. These photographs will not be returned. If the location of the child and taking parent is unknown, photographs can be emailed to the Canada country officer in the Office of Children's Issues at the Department of State (US Central Authority) (call 202-736-9090 for the email address). Emailed photographs can be passed without delay to the Royal Mounted Canadian Police.

Original or certified true copy of the child's birth certificate.

Original or certified true copy of marriage certificate and divorce decree, as appropriate.

Please remember:

• All documents should be typed or very clearly printed in black ink as they may be faxed more than once.

• Fill out the Hague application as completely as possible. The physical descriptions of the taking parent and child (Parts I and III) are particularly important, and should be completed regardless of the existence of accompanying photos. Also important is the explanation of the circumstances leading up to and surrounding the child's removal from the United States (Part IV on the application). In cases where the child has been gone for a few months or more, this statement, which can be done on a separate piece of paper, should be as detailed as possible regarding any actions taken to recover the child in the interim.

• If the taking parent may flee or hide the child when notified of the proceedings, it is very important that this is noted on the Hague application. A reason for this concern should be given in section VIII of the application or on a separate page. It is helpful if this concern is repeated in a cover letter or note attached to the application.

The completed Hague application with supporting documents should be submitted to:

(* - As of February, 2002 the State Department is experiencing considerable delays of at least three to four weeks in the delivery of regular mail due to mandated irradiation against harmful substances. We strongly recommend that Hague application packages be sent by courier such as FedEx, DHL, Express Mail, etc. to ensure prompt delivery.)

Please fax a copy of your application to 202-312-9743.

You may submit your application directly with the appropriate provincial or territorial Central Authority. If filing directly, you should also send a copy of your application and supporting documents to the U.S. Central Authority.

LEGAL COUNSEL: After the Central Authority has accepted a Hague application and located the child, they will then refer the petitioning parent to a private attorney to file the Hague application with the court and to represent the parent's interests in hearings on the application. Under the Hague Convention, Canada is not obligated to pay for or in any way assume any costs resulting from court proceedings. Some provinces or territories provide legal assistance based on economic need. For information regarding how to apply for legal assistance in a particular province or territory, contact the U.S. Central Authority or the appropriate provincial or territorial Central Authority office.

JUDICIAL PROCEDURE: Once a parent has obtained legal counsel, a case is filed in the appropriate court in Canada. It is important to remember that the Canadian legal system differs from that in the United States. How the court considers the case, and how and when it issues its decision, will vary from province or territory to province or territory as well as from case to case. Hague Convention matters are given priority by Canadian courts, but scheduling is still dependent on court availability. Parents should consult their Canadian attorney for an assessment of the procedure and anticipated delays in a particular province or territory. While each province or territory has different court procedures, Hague Applications are generally resolved by Canadian authorities in 4 to 6 months if the facts are easily determined.

APPEALS: Decisions on Hague applications may be appealed by either party, which may delay enforcement of an order for return. Parents should consult directly with their Canadian attorney regarding appeal procedures in a particular province or territory.

CRIMINAL REMEDIES: For information on possible criminal remedies, please contact your local law enforcement authorities or the nearest office of the Federal Bureau of Investigation. Information is also available on the Internet at the web site of the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, at http://www.ojjdp.ncjrs.org.

NEW U.S. LAW ON PASSPORT APPLICATIONS FOR MINORS: On July 2, 2001, the Department of State began implementation of the new law (Section 236 of P.L. 106-113) regarding the passport applications of minor U.S. citizens under age 14. Under this new law, a person applying for a U.S. passport for a child under 14 must demonstrate that both parents consent to the issuance of a passport to the child or that the applying parent has sole authority to obtain the passport. This law covers passport applications made at domestic U.S. passport agencies in the United States and at U.S. consular offices abroad. Exceptions to this requirement may be made in special family circumstances or exigent circumstance necessitating the immediate travel of the child. The purpose of the new requirement that both parents' consent be demonstrated is to lessen the possibility that a U.S. passport might be used in the course of an international parental child abduction.

CHILDREN'S PASSPORT ISSUANCE ALERT PROGRAM (CPIAP):
Separate from the two-parent signature requirement for U.S. passport issuance, parents may also request that their children's names be entered in the U.S. passport name-check system, also known as CPIAP. A parent or legal guardian can be notified by the Department of State's Office of Children's Issues before a passport is issued to his/her minor child. The parent, legal guardian or the court of competent jurisdiction must submit a written request for entry of a child's name into the Passport Issuance Alert Program to the Office of Children's Issues. The CPIAP also provides denial of passport issuance if appropriate court orders are on file with the Office of Children's Issues. Although this system can be used to alert a parent or court when an application for a U.S. passport has been executed on behalf of a minor, it cannot be used to track the use of a passport. If there is a possibility that your child has another nationality you may want to contact the appropriate embassy or consulate directly to inquire about the possibility of denial of that country's passport. There is no requirement that foreign embassies adhere to U.S. regulations regarding issuance and denial of passports. For more information contact the office of Children's Issues at 202-736-9090. General passport information is also available on the Office of Children's Issues home page on the Internet at children's_issues.html.

MORE INFORMATION: The State Department has general information about hiring a foreign attorney, service of process, enforcement of child support orders, and the international enforcement of judgments, which supplement the country-specific information provided in this flyer. In addition, the State Department publishes Consular Information Sheets for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. When situations in a country are sufficiently serious, the State Department issues Public Announcements or Travel Warnings that may recommend U.S. citizens deter travel to that country. These documents are available on the Internet at http://travel.state.gov or by the toll-free number, 1-888-407-4747, between 8:00a.m. and 8:00p.m. Eastern Standard Time, Monday through Friday (except U.S. holidays). Callers who are unable to use toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling 1-317-472-2328.

TOLL FREE HOTLINE: Overseas Citizens Services in the Bureau of Consular Affairs (CA/OCS) has established a toll free hotline for the general public at 1-888-407-4747. This number is available from 8:00 a.m. to 8:00 p.m. Eastern Standard Time, Monday through Friday (except U.S. federal holidays). Callers who are unable to use toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling 1-317-472-2328. Persons seeking information or assistance outside of these hours, including on weekends or holidays should call 1-202-647-5225.

The OCS hotline/Call Center can answer general inquiries regarding international parental child abduction and will forward calls to the appropriate Country Officer. For specific information and other services available to the searching parent, please call the Office of Children's Issues public phone number at 1-202-736-9090 during normal working hours.

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