Wednesday, July 02, 2014
The Hague Abduction Convention in Canada
The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.
The full article is available on the website of the Hague Conference on Private International Law.
Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Canada
By The Honourable Justice Robyn M. DIAMOND, Court of Queen’s Bench of Manitoba, Winnipeg, Canada
In Canada, there are three Networks of Judges who are responsible for the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the 1980 Child Abduction Convention). These are the Special Committee on International Child Protection, the Canadian Network of Contact Judges for inter-jurisdiction cases of child protection (Superior Court Trial Level) and the Inter-jurisdictional and Inter-provincial Child Abduction Contact Judges (Provincial Court Trial Level).
In September 2006, the Canadian Judicial Council approved the establishment of the Special Committee on International Parental Child Abduction. This Committee is composed of: “Two Liaison Judges for Canada who will be part of an International Network of Liaison Judges promoted by the Fourth Special Commission of The Hague Conference on Private International Law under the auspices of The Hague Convention on the Civil Aspects of International Child Abduction.”
At that time, Justice Jacques Chamberland, of the Quebec Court of Appeal, and I were appointed the two members of this Special Committee, Justice Chamberland being appointed for the civil law system (Quebec), and myself appointed for the common law system (the other 9 provinces and 3 territories). Both of us have continued to be Canada’s two representatives on the International Hague Network of Judges.
In April 2007, the Canadian Judicial Council also approved the establishment of the Canadian Network of Contact Judges (Trial Level) as part of the Trial Courts Committee Family Law Subcommittee. This Network, which I chair, is made up of trial judges, representing every provincial and territorial Superior Court in Canada, and was established to deal with issues of inter-jurisdictional parental child abduction and cases of child custody, whether inter-provincial or international.
In many parts of Canada there is concurrent jurisdiction between the Superior Court and Provincial Courts in cases of inter-jurisdictional custody matters. On 8 June 2008, the
Canadian Council of Chief Judges approved the establishment of a Network of Provincial Court Judges with each Chief Judge designating a provincial contact person for Hague Convention applications. Associate Chief Judge Nancy Phillips of British Columbia Provincial Court has been appointed as the Liaison for the Provincial Court Judges with the Canadian Network of Contact Judges.
The establishment of these three networks of judges in Canada is a signiﬁcant accomplishment, particularly in light of the constitutional structure and size of Canada. In Canada we have 13 provinces and territories, each of which has their own individually federally appointed trial court as well as provincially appointed trial court. Depending on the nature of the family matter, family law cases may be heard at both levels of courts in some provinces and territories. The establishment of these three networks was made possible through formal resolutions passed and supported by every Chief Justice and Chief Judge of all federally and provincially appointed trial courts within Canada.
In 2009, the Terms of Reference for both the Special Committee on International Child Abduction and the Canadian Network of Contact Judges were expanded with the names changed to “The Special Committee on International Child Protection” and “The Canadian Network of Contact Judges for International Cases of Child Protection.”
The members of the two Networks of Trial Judges work closely together in the development of protocols and educational programs. These protocols have included a Procedural
Protocol for the handling of return applications under the 1980 Child Abduction Convention designed to expedite Hague return applications as well as the formulation of Guidelines
for Direct Judicial Communications.
Where there are requests for a judicial communication in international cases, in the case of a Canadian judge wishing to have contact with an international judge, that Canadian judge would contact their provincial Network Judge, who in the case of Quebec, would contact Justice Chamberland, and for the rest of Canada, would contact me. Justice Chamberland and I would then facilitate communication between the initiating Canadian judge and the appropriate International Hague Network Judge in the other jurisdiction. That International Hague Network Judge would then forward the request for communication to the appropriate seized judge in their jurisdiction. Similarly, when a request is received from a member of the International Hague Network of Judges for communication with a Canadian Judge, in the case of Quebec, the request is made to Justice Chamberland and for the rest of Canada the request is made to me. Upon receiving the request, we would then contact the appropriate Canadian Network Judge who would facilitate communication with the seized judge in their province or territory.
Since the establishment of these Networks there have been a growing number of situations that have illustrated the importance of judicial networking and cross border collaboration. The importance of judicial communication, cooperation, consultation, collaboration both internationally and inter-provincially, have resulted in cases of parental child abduction being resolved in an eﬃcient and speedy manner as contemplated by the 1980 Child Abduction Convention. Since we have established this protocol, I have personally been involved in approximately 20 international cases where I have facilitated direct judicial communications.
These experiences illustrate that the Canadian judicial model, being the two International Hague Network Judges, along with the Canadian Network of Contact Judges and the
Provincial Network of Contact Judges, works well but also that the International Hague Network of Judges works well and is extremely eﬃcient. Having attended a number of international conferences with members of the International Hague Network of Judges, I am able to verify their identities and the legitimacy of their requests to my Canadian colleagues without hesitation. International meetings have proven invaluable as they foster working relationships and instil levels of trust among judges throughout the world, who at some point in the future will probably be in contact with each other pertaining to individual cases.
In recognition of the importance and need for Canadian judges to receive appropriate training in the handling of these types of matters, some members of the Canadian Network of Contact Judges have, along with the National Judicial Institute of Canada, produced an educational module that has been presented to Canadian judges throughout the country. An integral part of this educational module is The Hague Convention Electronic Bench Book (EBB) which was co-written by some members of the Canadian Network of Contact Judges. This EBB provides a broad analytical framework and practical step by step suggestions for both case management and return hearings. This EBB was distributed to Canadian judges in the fall of 2011. In the fall of 2012, as a result of requests received from international colleagues to have access to this EBB, it was made available for distribution to non-Canadian judges through the following email account: firstname.lastname@example.org. A link to the EBB is then provided by the National Judicial Institute of Canada.