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: thehague@nji.in.ca. A link to the EBB is then
provided by the National Judicial Institute of Canada.