Hague Convention cases or international child abduction cases

Section 80 deals with international child abduction and reads as follows:

International child abduction

80 (1) In this section, “convention” means the Convention on the Civil Aspects of International Child Abduction signed at The Hague on October 25, 1980.

(2) The definitions in the convention in relation to custody and access apply to this Division for the purpose of applying the convention.

(3) For the purpose of the convention, the Attorney General is the Central Authority for British Columbia.

(4) Subject to subsection (5), the provisions of the convention have the force of law in British Columbia.

(5) The government is not bound to assume any costs resulting from the participation of legal counsel or advisors, or from a court proceeding, in relation to applications submitted under the convention, except to the extent that the costs are covered under British Columbia’s system of legal aid and advice.

(6) Subsections (1) to (5) and the convention apply respecting a child who, immediately before a breach of custody or access rights, was habitually resident in a contracting state, but do not apply respecting a child described in subsection (7).

(7) Division 7 [Extraprovincial Matters Respecting Parenting Arrangements] applies respecting

(a) a child who is in Canada and who, immediately before a breach of custody or access rights, was habitually resident in Canada,

(b) a child who, immediately before a breach of custody or access rights, was habitually resident in a state other than a contracting state,

(c) a child who, immediately before a breach of custody or access rights, was resident, but not habitually resident, in a contracting state, and

(d) any other child affected by an extraprovincial order, other than a child respecting whom subsections (1) to (5) of this section and the convention apply.

Explanation from the Ministry of Justice

This section addresses the Hague Convention on the Civil Aspects of International Child Abduction to ensure the continued application of the Convention on the Civil Aspects of International Child Abduction in British Columbia.

It deals with administrative requirements of the convention such as appointing a “Central Authority”. The Central Authority is the office that assists parents and guardians with locating children in other jurisdictions. It is also responsible for communication and coordination with other jurisdictions with regard to ensuring the return of children to British Columbia.

This section identifies the Attorney General as the “Central Authority” for British Columbia.

Section 80 carries over s. 55 of the Family Relations Act.

Commentary

Part 4 of the FRA consisted of one section, s. 55, with a number of subsections. Division 8 of the FLA maintains this structure as it consists of one section, s. 80, with a number of subsections.

The heading of s. 55 of the FRA, “International Child Abduction”, remains the same for s. 80 of the FLA.

The purpose and effect of s. 80 of the FLA is the same as that of s. 55 of the FRA, which is to give full force and effect to the Hague Convention on the Civil Aspects of International Child Abduction in British Columbia. The wording of s. 80 of the FLA is essentially the same in most instances as the wording of s. 55 of the FRA and it would therefore appear that there will be little change in procedure or jurisprudence in cases of international child abduction under the Hague Convention in British Columbia resulting from the enactment of this division of the FLA.

Section 80(1) of the FLA, like s. 55(1) of the FRA, states that “convention” refers to the Hague Convention on the Civil Aspects of International Child Abduction and s. 80(4) of the FLA, like s. 55(2), states that the provisions of the convention have the force of law in British Columbia. Both subsections state that they are subject to another subsection, s. 80(5) in the FLA and s. 55(4) in the FRA. The effect of this in both instances is to provide that the Government of British Columbia is not liable for any costs related to Hague Convention proceedings, with the exception of cases in which legal aid may be provided where that is deemed to be appropriate.

Section 80(3) of the FLA, like s. 55(3) of the FRA, designates the Attorney General of British Columbia as the Hague Convention Central Authority.

Section 80(6) and (7) of the FLA, like s. 55(5) and (6) of the FRA, states that the Hague Convention is to be utilized only in cases in which the Convention is applicable while Division 7 applies in all other cases in which children have been wrongfully removed or wrongfully retained or are affected by extraprovincial orders.

A new subsection has been added, s. 80(2), stating that the definitions in the Convention that relate to custody and access apply to Division 8 for the purpose of applying the Convention. It appears that this subsection has been added because the FLA, unlike the FRA, no longer uses the terms “custody” and “access” and is designed to provide that those terms may still be used when dealing with applications under the Convention in British Columbia.

One subsection that was contained in the FRA has been deleted, s. 55(7). This subsection was originally included, it appears, to provide that the Attorney General was required to publish a notice in Part II of the Gazette stating the date on which the Convention was to come into force in British Columbia. As the Convention is in force and has been in force in British Columbia for many years, this subsection was no longer needed.