International Child Abduction
If the unthinkable happens and you are separated unfairly from your children, you need a reliable recourse. Our Montreal law firm is experienced in matters of international child abduction and can represent you resourcefully when it comes to this extremely important and urgent situation.
Typical cases of International Child Abduction that our firm handles in Montreal and across Quebec involve the following three situations:
A child or children being removed from the country where they ordinarily reside and taken to another country;
A child or children being wrongfully retained in a country other than that in which they ordinarily reside (perhaps subsequent to visiting a parent who does not send them back;
A parent who is right fully retaining the children but is unjustly accused of abducting them.
Since 1983, the most important international law in this field is The Hague Convention on Civil Aspects of International Child Abduction. This law is designed to ensure the speedy return of children who have been abducted from their country of habitual residence, or those children who are wrongfully retained in another Hague Convention country.
The law, the procedures and the jurisprudence that apply to these types of cases are different from other types of family law cases. Hague Convention matters take priority in court scheduling so as to maximize the speed with which children can be returned, or with which the application can be dismissed if unfounded. IMPORTANT: Not every judge is aware of this rule! It is important that the Court be guided by an informed attorney.
Although Canada is a member state and signatory to The Hague Convention, the Province of Quebec has enacted its own law to mirror principles and rules of the Convention. This law (A 23-01) is entitled an ACT RESPECTING THE CIVIL ASPECTS OF INTERNATIONAL AND INTERPROVINCIAL CHILD ABDUCTION, and the attorneys of our firm are equally trained in the Quebec Act, cross applying jurisprudence liberally so as to achieve the best results.
Each member country that has a designated office known as a “Central Authority” that helps to coordinate the return of the child, and that can become party to the proceedings so as to help in informing the Court re the particularities of the Convention. The Central Authority can be a very helpful resource, especially for those attorneys who are familiar with their mission and services.
Fortunately, international child abduction is a not a frequent occurrence. As a result, this type of situation does not arise often before the Court, other than in major international cities such as New York or Montreal. For this reason, attorneys from the Law Firm of Kalman Samuels, Attorneys, have assisted lawyers and judges in other jurisdictions across Quebec, Canada and the U.S. with the application of this Convention. Numerous parents, not wishing to take chances, have hired Kalman Samuels, Attorneys, to represent them in cities other than their home-base of Montreal despite the increased cost of travel that this would involve. In matters of International Child Abduction, concerned parents do their best to seek every advantage legally possible.
As of 2020, there are one 101 countries that have signed the Hague Convention. If your child has been abducted from one of these countries to another of these counties, then your attorneys can use The Hague Convention to apply for the speedy return of the child. Be careful, however. Some countries may be signatories, but their accession to the convention is not yet recognized by Canada. These are critical issues. Please be sure to use the best attorneys available.
When dealing with International Child Abduction between two countries where one of the countries concerned is not a member state, or their membership is not (yet) recognized, The Hague Convention does not apply. Other means must be used. There are a number of local and international laws that can be helpful in such cases. In extreme cases, it sometimes becomes necessary to think “outside the box” in order to properly resolve matters. From its base in the City of Montreal, the Law Firm of Kalman Samuels, Attorneys has used internationally renowned private investigators to help locate and facilitate the return of children from non-signatory countries. In certain very difficult cases that came to us after having passed through several hands, we have also leveraged local criminal laws combined with the assistance of Interpol to accomplish what no other attorneys were able to do. This is our domain! This is what we do.
The Accused Parent
Sometimes we are called upon to represent parents who are unjustly accused of having abducted or unlawfully retained their child or children. There are a number of perfectly legitimate reasons for which a parent would be justified in relocating their children away from the children’s ordinary residence. There are also a number of ways to define and attack the concept of ‘ordinary residence’. Kalman Samuels, Attorneys are well-versed in a wide range of defenses to Hague Convention type applications.
One of the most important factors in Hague Convention applications is the rapidity with which a legal process will take place. What can take a year or more in regular family law cases must be accomplished within weeks or at most two or three months. Given our experience in this matter, our firm has the means and the capability to act quickly and powerfully, as is needed in such cases.
We provide here below a few notable examples of our work in the area of International Child Abduction.
In this case, children were taken from their habitual residency in Spain, and the father hired Kalman Samuels, Attorneys to obtain the speedy return of the children. This case is notable for two reasons.
The first is because after we won at the Superior Court level, the case was taken to Appeal. We won again and obtained the return of the children to Spain.
This case is also noteworthy because the father did not have the means to pay for legal services and leave his work and travel to Canada for the hearing. Living up to our reputation as leaders and innovators, we became the first law firm in Quebec to obtain permission to have our client testify in a family law matter via SKYPE.
Judgment, Superior Court of Quebec, in Montreal
In this case, the children were wrongfully retained by the father in Quebec after the children had come to visit him for the summer. Their habitual residence was in New Zealand. This case is notable for three reasons.
The first is that the father, with the assistance of his local family, had spent the entire summer charming the children, buying them top of the line video game consuls and catering to their every wish and making every promise imaginable. By the time the hearing was scheduled, both children clearly announced to the Court, and to their own attorney that they would prefer to remain in Canada. Despite this manipulation, the Law Firm of Kalman Samuels, Attorneys was able to obtain an order for the immediate return of the children, plus a significant cost award for our client.
The second notable point about this case is that the hearing took place in Quebec City, three hours away from Montreal. Although the client understood that this would entail greater expense for travel, travel time, and hotel as our attorneys would have to travel from Montreal to Quebec City, she made the decision that she did not want to take any chances by hiring a firm not known for work in this area. Her decision paid off.
The third notable point about this case highlights the excellent teamwork that is practiced at Kalman Samuels, Attorneys. As mentioned above, this abduction occurred in summer time which is a busy time for family law firms. The senior attorney who eventually plead the case at trial was busy on other cases when this matter was first brought to us. The senior attorney who served the client and prepared the case knew that she would be unable plead at trial as she was about to depart on maternity leave. With the help of the junior attorneys and dedicated staff, the quick transition from one attorney to another happened efficiently and seamlessly, the case was won, and the children returned safely to where they belong.
In this fascinating and extremely challenging case, the Law Firm of Kalman Samuels, Attorneys was able to secure the return of the children to Florida for the father, from Montreal where the mother had abducted them. What made this case especially noteworthy is that the father was not the biological father, nor had he adopted the children. Once again, The attorneys of this Montreal law firm blazed new ground and exceeded all expectations.
A good demonstration of our expertise in this field may be found in a case, which we won in 2007, involving the Province of Quebec and the State of California, U.S.A., copy of which you will find by selecting this hyperlink or by going to the Cases section of this website. In this case pleaded before the Superior Court of Quebec, we were representing the father of three minor children who were kidnapped by their mother. The children had their regular residence in California and were kidnapped by their mother, who brought them with her to the Province of Quebec. Our firm in accordance with the Act Respecting the Civil Aspects of International and Interprovincial Child Abduction instituted proceedings seeking the immediate return of the children to California.
This decision addresses many legal issues that are often raised in international child abduction cases. The decision also examines the interpretation of certain provisions of the Convention on the Civil Aspects of International Child Abduction (often referred to as “The Hague Convention”).
See also the case EYB 2008-143827 won by our Law Firm in July 2008 in the CASES section of this website. This case is addressing one of the exceptions listed in the “Law pertaining to the civil aspects of international and interprovincial child abduction,” which may be raised against the forced return of children illegally removed from its place of habitual residence.
This case serves as an example of how hiring big guns can result in big savings. In this case, a young boy was wrongfully detained by his father in Miami. The mother, in Montreal, sought his return. Using our extensive network of attorneys in New Jersey, New York, and Miami, we were able to initiate Hague Convention proceedings. The neither the judge seized of this case, nor the opposing attorneys had experience with Hague Convention matters. We carefully guided all the parties, including the Court, through the proceedings. Eventually, the opposing counsel and the father realized that they were in over their heads and relented, sending the boy back via a settled agreement and saving everyone the time and expense of an emergency trial.