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This is not an official version. POINT IN TIME |
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| June 1, 2010 to June 29, 2011 |
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RSNL1990 CHAPTER C-13 CHILDRENS LAW ACT Amended: 1991 c43 s.3; 1995 c27 1; 1998 c12.1 s80; 2001 c42 s6; CHAPTER C-13 AN ACT RESPECTING THE LAW OF CHILDREN
PART I
PART II
PART
PART IV
PART V
Short title 1. This Act may be cited as the Children's Law Act. Interpretation 2. (1) In this Act (a) "court" means, except in Part IV, the Trial Division or the Provincial Court; and (b) "registrar" means the Registrar General of Vital Statistics. (2) Notwithstanding the definition of court in this Act, in a judicial area referred to in section 43.5 of the Judicature Act, "court" means the Trial Division - Family Division. (3) For the purpose of sections 10 and 12, (a) where a man and woman go through a form of marriage with each other with at least 1 of them doing so in good faith and they cohabit and the marriage is void, they shall be considered to be married during the time they cohabit; and (b) where a voidable marriage is decreed a nullity, the man and woman shall be considered to be married until the date of the decree of nullity. 1988 c61 s2; 2009 c16 s9 Child of natural parents 3. (1) A person is the child of his or her natural parents, and his or her status as their child is independent of whether he or she is born inside or outside marriage. (2) Notwithstanding subsection (1), where an adoption order has been made, theAdoption of Children Act applies and the child is in law the child of the adopting parents as if they were the natural parents. (3) Kindred relationships shall be determined according to the relationships described in subsection (1) or (2) and section 12. (4) All distinctions between the status of a child born inside marriage and a child born outside marriage are abolished and the relationship of parent and child and kindred relationships flowing from that relationship shall be determined in accordance with this section and section 12. Construction of instruments and statutes 4. For the purpose of construing an instrument or Act, a reference to a person or group or class of persons described in terms of relationship to another person by blood or marriage shall be construed to refer to and include a person who comes within the description by reason of the relationship of parent and child as determined under this Act. Application
5.
This Act applies to an Act passed before, on or after
(a)
an instrument made before
(b)
a disposition of property made before Labrador Inuit rights 5.1 This Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act. PART II Declaration of motherhood 6. (1) A person having an interest may apply to the court for a declaratory order that a woman is or is not in law the mother of a child. (2) Where the court finds on the balance of probabilities that a woman is or is not the mother of a child, the court may make a declaratory order to that effect. Declaration of fatherhood 7. (1) A person having an interest may apply to the court for a declaratory order that a man is or is not in law the father of a child. (2) Where the court finds on the balance of probabilities that a man is or is not the father of a child, the court may make a declaratory order to that effect. (3) Where the court finds that a presumption of paternity under section 10 applies, the court shall make a declaratory order confirming that the paternity is recognized in law unless it is established on the balance of probabilities that the presumed father is not the father of the child. (4) Where circumstances exist that give rise under section 10 to conflicting presumptions as to the paternity of a child and the court finds on the balance of probabilities that a man is the father of a child, the court may make a declaratory order to that effect. (5) [Rep. by 2009 c11 s1] (6) [Rep. by 2009 c11 s1] (7) Nothing in this section prevents an application under this section before the birth of the child. 1988 c61 s7; 1989 c11 s3; 2009 c11 s1 Blood tests 8. (1) On the application of a party to a proceeding under section 6 or 7 the court may, subject to the conditions it considers appropriate, give the party leave to obtain blood or other genetic tests of persons named by the court and to submit the results in evidence. (2) Where a person named by the court is not capable of consenting to having a blood test taken, the consent shall be considered to be sufficient (a) where the person is a minor who is 16 years of age or more, if the minor consents; (b) where the person is a minor under 16 years of age, if the person having the charge of the minor consents; and (c) where the person is not capable of consenting for a reason other than minority, if the person having his or her charge consents and a medical practitioner certifies that the giving of a blood sample would not be prejudicial to the person's proper care and treatment. (2.1) Where a person named by the court is incapable of consenting to genetic testing due to his or her death, the consent of that persons executor, administrator or nearest relative shall be considered sufficient. (3) Where a person named by the court refuses to submit to a blood test the court may draw an inference it considers appropriate. (4) Where the court gives a party leave to obtain a blood or other genetic test under this section, the costs of that test shall be borne by the party requesting the test. (5) Notwithstanding subsection (4), the court may order either party or both parties to pay a portion or all of the costs of the blood or other genetic test under this section. 1988 c61 s8; 1989 c11 s3; 2009 c11 s2 Order to be recognized 9. (1) A declaratory order made under section 6 or 7 shall be recognized for all purposes. (2) Notwithstanding subsection (1), where a declaratory order has been made under section 6 or 7 and evidence that was not available at the previous hearing becomes available, the court may, on application, discharge the order. (3) Where an order is discharged under subsection (2), (a) rights and duties which have been exercised and observed; and (b) interests in property which have been distributed as a result of the order before its discharge, are not affected. Presumption of paternity 10. (1) Unless the contrary is proved on the balance of probabilities, a man is presumed to be the father of a child in 1 or more of the following circumstances: (a) he was married to the mother at the time of the child's birth; (b) he was married to the mother by a marriage that was terminated by (i) death or judgment of nullity that occurred, or (ii) divorce where the judgment of divorce or decree nisi was granted within 300 days, or a longer period the court may allow, before the birth of the child; (c) he married the mother after the child's birth and acknowledges that he is the father; (d) he and the mother have acknowledged in writing that he is the father of the child; (e) he was cohabiting with the mother in a relationship of some permanence at the time of the child's birth or the child was born within 300 days, or a longer period the court may allow, after the cohabitation stopped; and
(f)
he has been found or recognized by a court in (2) Where circumstances exist that give rise to a presumption that more than 1 man may be the father, no presumption shall be made as to paternity and no one is recognized in law to be the father unless the court so finds under subsection 7(2). (3) A written acknowledgment of parentage that is admitted in evidence in a civil proceeding against the interest of the person making the acknowledgment is, in the absence of evidence to the contrary, proof of the fact. Orders to be filed with registrar 11. (1) The registrar or clerk of a court in the province shall file in the office of the registrar a statement respecting each order or judgment of the court which makes a finding of parentage or that is based on a recognition of parentage. (2) A written acknowledgement of paternity referred to in section 10 may be filed in the office of the registrar. (3) On application and on satisfying the registrar that the information is not to be used for an unlawful or improper purpose, a person may inspect and obtain from the registrar a certified copy of (a) a statement or acknowledgment filed under this section; or (b) a certificate of registry of birth made under the Vital Statistics Act, 2009. (4) The registrar is not required to amend the register of births in relation to a statement or acknowledgment filed under this section. (5) Notwithstanding subsection (4), on receipt of a statement under subsection (1) in relation to a declaratory order made under section 6 or 7, the registrar shall, in accordance with the Vital Statistics Act, 2009 amend the register of births accordingly. 1988 c61 s11; 2009 cV-6.01 s51 Artificial insemination 12. (1) In this section, "artificial insemination" includes the fertilization by a man's semen of a woman's ovum outside of her uterus and subsequent implantation of the fertilized ovum in her. (2) A man whose semen was used to artificially inseminate a woman is in law the father of the resulting child if he was married to or cohabiting with the woman at the time she is inseminated even if his semen was mixed with the semen of another man. (3) A man who is married to a woman at the time she is artificially inseminated solely with the semen of another man shall be considered in law to be the father of the resulting child if he consents in advance to the insemination. (4) A man who is not married to a woman with whom he is cohabiting at the time she is artificially inseminated solely with the semen of another man shall be considered in law to be the father of the resulting child if he consents in advance to the insemination, unless it is proved that he refused to consent to assume the responsibilities of parenthood. (5) Notwithstanding a married or cohabiting man's failure to consent to the insemination or consent to assume the responsibilities of parenthood under subsection (3) or (4), he shall be considered in law to be the father of the resulting child if he has demonstrated a settled intention to treat the child as his child unless it is proved that he did not know that the child resulted from artificial insemination. (6) A man whose semen is used to artificially inseminate a woman to whom he is not married or with whom he is not cohabiting at the time of the insemination is not in law the father of the resulting child. Definitions 13. In sections 14 to 23 (a) "extra-provincial declaratory order" means an order in the nature of a declaratory order provided for in section 6 or 7 but made by a court outside of the province; (b) "extra-provincial finding of paternity" means a judicial finding of paternity that is made incidentally in the determination of another issue by a court outside of the province and that is not an extra-provincial declaratory order. Orders elsewhere in
14.
An extra-provincial declaratory order that is made in Orders made outside
15.
An extra-provincial declaratory order that was made outside (a) at the time the proceeding was started or the order was made, either parent was domiciled, (i) in the territorial jurisdiction of the court making the order, or (ii) in a territorial jurisdiction in which the order is recognized; (b) the court that made the order would have had jurisdiction to do so under the rules that are applicable in the province; (c) the child was habitually resident in the territorial jurisdiction of the court making the order at the time the proceeding was started or the order was made; or (d) the child or either parent had a real and substantial connection with the territorial jurisdiction in which the order was made at the time the proceeding was started or the order was made. Exceptions 16. A court may decline to recognize an extra-provincial declaratory order and may make a declaratory order under this Act where (a) new evidence that was not available at the hearing becomes available; or (b) the court is satisfied that the extra-provincial declaratory order was obtained by fraud or duress. Filing with director 17. (1) A copy of an extra-provincial declaratory order, certified under the seal of the court that made it, may be filed in the office of the registrar but where the extra-provincial declaratory order is made outside of Canada, the copy shall be accompanied by (a) the opinion of a lawyer licensed to practice in the province that the declaratory order is entitled to recognition under the law of the province; (b) a sworn or affirmed statement by a lawyer or public official in the extra-provincial territorial jurisdiction as to the effect of the declaratory order in that jurisdiction; and (c) where necessary, a translation, verified by affidavit. (2) Upon the filing of an extra-provincial declaratory order under this section, the registrar shall, in accordance with the Vital Statistics Act, 2009, amend the register of births accordingly, but where the extra-provincial declaratory order contradicts paternity found by an order already filed, the most recent order in time shall prevail. (3) The registrar is not liable for the consequences resulting from filing under this section material that is apparently regular on its face. 1988 c61 s17; 2009 cV-6.01 s51 Evidence 18. A copy of an extra-provincial declaratory order, certified under the seal of the court that made it, is admissible in evidence without proof of the signatures or office of a person executing the certificate. Findings of paternity elsewhere in
19.
An extra-provincial finding of paternity that is made in Findings of paternity outside 20. An extra-provincial finding of paternity that is made outside Canada by a court that has jurisdiction to determine the matter in which the finding was made, as determined by the conflict of laws rules of the province, shall be recognized and have the same effect as if made in the province under the same circumstances. Evidence 21. A copy of an order or judgment in which an extra-provincial finding of paternity is made, certified under the seal of the court that made it, is admissible in evidence without proof of the signature or office of a person executing the certificate. Presumption where conflicting findings 22. There shall be no presumption of paternity under paragraph 10(1)(f) of where contradictory findings of paternity exist, whether extra-provincial or otherwise. Application
23.
Sections 13 to 22 apply to extra-provincial declaratory orders and extra-provincial findings of paternity whether made before or after 1988 c61 s23 Definitions 24. (1) In this Part (a) "extra-provincial order" means an order, or that part of an order, of an extra-provincial tribunal that grants to a person custody of or access to a child; (b) "extra-provincial tribunal" means a court or tribunal outside the province that has jurisdiction to grant to a person custody of or access to a child; and (c) "separation agreement" means an agreement that is a valid separation agreement under Part IV of the Family Law Act. (2) A reference in this Part and Part IV to a child is a reference to the child while a minor. Purposes of Part 25. The purposes of this Part are (a) to ensure that application to the courts in respect of custody of, incidents of custody of and access to, children will be determined on the basis of the best interests of the children; (b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than 1 province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of the province will, unless there are exceptional circumstances, refrain from exercising or declining jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection; (c) to discourage the abduction of children as an alternative to the determination of custody rights by the judicial process; and (d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside the province. Equal entitlement to custody 26. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. (2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and shall exercise those rights and responsibilities in the best interests of the child. (3) Where more than 1 person is entitled to custody of a child, 1 of them may exercise the rights and accept the responsibilities of a parent on behalf of both in respect of the child. (4) Where the parents of a child live separate and apart and the child lives with 1 of them with the express or implied consent of the other, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. (5) Where the parents of a child live separate and apart and the child is in the custody of 1 of them and the other is entitled to access under the terms of a separation agreement or order, each shall, in the best interests of the child, encourage and support the child's continuing relationship with the other. (6) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. (7) The entitlement to custody of or access to a child terminates on the marriage of the child. (8) An entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. (9) The entitlement to custody is subject to the termination of the rights of a natural parent by order under the Adoption of Children Act. Application to court 27. A parent of a child or other party, as specified in paragraphs 69(4)(b) to (d), may apply to a court for an order respecting custody of or access to the child or determining an aspect of the incidents of custody of the child. Jurisdiction 28. (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where (a) the child is habitually resident in the province at the start of the application for the order; or (b) although the child is not habitually resident in the province, the court is satisfied (i) that the child is physically present in the province at the start of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in the province, (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in the province, (v) that the child has a real and substantial connection with the province, and (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in the province. (2) A child is habitually resident in the place where he or she lived (a) with both parents; (b) where the parents are living separate and apart, with 1 parent under a separation agreement or with the express or implied consent of the other or under a court order; or (c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred. (3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in starting judicial proceedings by the person from whom the child is removed or withheld. Serious harm to child 29. Notwithstanding sections 28 and 49, a court may exercise its jurisdiction to make, vary or rescind an order in respect of the custody of or access to a child where (a) the child is physically present in the province; and (b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if (i) the child remains in the custody of the person legally entitled to custody of the child, (ii) the child is returned to the custody of the person legally entitled to custody of the child, or (iii) the child is removed from the province. Declining jurisdiction 30. A court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the province. Merits of application for custody or access 31. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child. (2) In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including (a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child's family who live with the child, and (iii) persons involved in the care and upbringing of the child; (b) the views and preferences of the child, where the views and preferences can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and the special needs of the child; (e) the ability of each parent seeking the custody or access to act as a parent; (f) plans proposed for the care and upbringing of the child; (g) the permanence and stability of the family unit with which it is proposed that the child will live; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. (3) In assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent manner towards (a) his or her spouse or child; (b) his or her child's parent; or (c) another member of the household, otherwise a person's past conduct shall only be considered if the court thinks it is relevant to the person's ability to act as a parent. Effect of divorce proceedings
32.
(1) Where a divorce proceeding is started under theDivorce Act, 1985
( (2) Where a marriage is terminated by a judgment of divorce or nullity and the question of custody of or access to a child is not adjudicated in the divorce or nullity proceedings, an order for custody or access made under this Act continues in force according to its terms. Powers of court 33. The court to which an application is made under section 27 (a) by order may grant the custody of or access to the child to 1 or more persons; (b) by order may determine an aspect of the incidents of the right to custody or access; and (c) may make an additional order that the court considers necessary and proper in the circumstances. Variation of order for access 34. (1) Where an order for access to a child provides for access without specifying times or days, a party to the order may apply to a court to vary the order by specifying times or days. (2) The court may vary the order by specifying times or days agreed on by the parties or where the parties do not agree the court may vary the order as it thinks appropriate. (3) Subsection (1) also applies, with the necessary changes, to a separation agreement under section 64 of the Family Law Act.
(4)
Subsection (1) does not apply to an order made under the Divorce Act, 1985
( Order varying an order 35. (1) A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in the province unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. (2) Subsection (1) does not apply to an order made under subsection 34(2) or subsection 41(2) or (6). Assessment of needs of child 36. (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to investigate, assess and report to the court on the needs of the child and the ability and willingness of the parties to satisfy the needs of the child. (2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child and with or without a request by a party to the application. (3) The court may appoint a person agreed upon by the parties, but where the parties do not agree the court shall choose and appoint an independent person. (4) The court shall not appoint a person under this section unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. (5) In an order under subsection (1), the court may require the parties, the child and another person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order. (6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw those inferences in respect of the ability and willingness of the person to satisfy the needs of the child that the court considers appropriate. (7) The person appointed under subsection (1) shall file his or her report with the clerk or registrar of the court. (8) The clerk or registrar of the court shall give a copy of the report to each of the parties and to counsel representing the child. (9) The report mentioned in subsection (7) is admissible in evidence in the application. (10) The parties, and counsel representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application. (11) Upon motion, the court by order may give those directions in respect of the assessment that the court considers appropriate. (12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1) except where that person is engaged or employed by the court or otherwise by the Crown. (13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay. (14) The court may require 1 party to pay all the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause the other party serious financial hardship. (15) The appointment of a person under subsection (1) does not prevent the parties or counsel representing the child from submitting other expert evidence as to the needs of the child and the ability and willingness of the parties to satisfy the needs of the child. Mediation 37. (1) Upon an application for custody of or access to a child, the court, at the request of the parties, by order may appoint a person selected by the parties to mediate a matter specified in the order. (2) The court shall only appoint a person who (a) has consented to act as mediator; and (b) has agreed to file a report with the court within the period of time specified by the court. (3) It is the duty of a mediator to confer with the parties, and with the children where the mediator considers it appropriate to do so, and the mediator shall try to obtain an agreement in respect of the matter. (4) Before entering into mediation on the matter, the parties shall agree whether (a) the mediator is to file a full report on the mediation, including anything that the mediator considers relevant to the matter in mediation; or (b) the mediator is to file a limited report that either sets out the agreement reached by the parties or states only that the parties did not reach agreement on the matter. (5) The mediator shall file a report with the clerk or registrar of the court in the form agreed upon by the parties under subsection (4). (6) The clerk or registrar of the court shall give a copy of the report to each of the parties and to counsel representing the child. (7) Where the parties have decided that the mediator is to file a limited report, evidence arising from anything said, evidence of anything said or of an admission or communication made in the course of the mediation is not admissible in a proceeding except with the consent of all parties to the proceeding in which the order was made under subsection (1). (8) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1) except where that person is on the staff of the court. (9) The court shall specify in the order the proportions of the fees and expenses that the court requires each party to pay. (10) The court may require a party to pay all the fees and expenses of the mediator where the court is satisfied that payment would cause the other party serious financial hardship. Further evidence 38. (1) Where a court is of the opinion that it is necessary to receive further evidence from a place outside the province before making a decision, the court may send to the Attorney General, Minister of Justice or similar officer of the place outside the province the supporting material that may be necessary together with a request (a) that the Attorney General, Minister of Justice or similar officer take the action that may be necessary in order to require a named person to attend before the appropriate tribunal in that place and produce or give evidence in respect of the subject-matter of the application; and (b) that the Attorney General, Minister of Justice or similar officer or the tribunal send to the court a certified copy of the evidence produced or given before the tribunal. (2) A court that acts under subsection (1) may assess the cost of so acting against 1 or more of the parties to the application or may deal with the cost as costs in the cause. Referral to court 39. (1) Where the Attorney General receives from an extra-provincial tribunal a request similar to that referred to in section 38 and the supporting material that may be necessary, it is the duty of the Attorney General to refer the request and the material to the appropriate court. (2) A court to which a request is referred by the Attorney General under subsection (1) shall require the person named in the request to attend before the court and produce or give evidence in accordance with the request. Supervision of custody or access 40. (1) Where an order is made for custody of or access to a child, a court may give the directions that it considers appropriate for the supervision of the custody or access by a person or a director of child, youth and family services under the Child, Youth and Family Services Act . (2) A court shall not direct a person or a director of child, youth and family services under the Child, Youth and Family Services Act to supervise custody or access as mentioned in subsection (1) unless the person or director has consented to act as supervisor. (3) A director of child, youth and family services under the Child, Youth and Family Services Act may designate a social worker to carry out the directions of the court in subsection (1) where the director consents to act as a supervisor. 1988 c61 s40; 1998 cC-12.1 s80; 2001 c42 s6 Enforcement of access 41. (1) Where a person, in whose favour an order has been made for access to a child at specific times or on specific days, has been wrongfully denied access to the child by the person who has custody, the person with access may apply for relief to the court that made the original access order. (2) Where the court is satisfied that access is being wrongfully denied to the applicant, the court may order (a) the respondent to give the applicant compensatory access to the child for a period agreed on by the parties, or where the parties do not agree for a period that the court considers appropriate; (b) supervision under section 40; (c) the respondent to reimburse the applicant for reasonable expenses actually incurred as a result of the wrongful denial of access; or (d) the appointment of a mediator in accordance with section 37. (3) Compensatory access shall not be longer than the access that was wrongfully denied. (4) A denial of access is not wrongful where (a) the respondent believes on reasonable grounds that the child will suffer physical or emotional harm if access is exercised; (b) the respondent believes on reasonable grounds that he or she might suffer physical harm if access is exercised; (c) the respondent believes on reasonable grounds that the applicant is impaired by alcohol or a drug at the time of access; (d) the applicant fails to present himself or herself to exercise the right of access within 1 hour of the time specified in the order or a time otherwise agreed on by the parties; (e) the respondent believes on reasonable grounds that the child is suffering from an illness of such a nature that it is not appropriate to allow access to be exercised; (f) the applicant does not satisfy written conditions that were agreed on by the parties or that are part of the order for access; (g) on numerous occasions during the preceding 12 months the applicant had, without reasonable notice and excuse failed to exercise the right of access; (h) the applicant had informed the respondent that he or she would not seek to exercise the right of access on the occasion in question; or (i) the court thinks that the withholding of the access is, in the circumstances, justified. (5) Where the person who under the terms of an order has access to a child and has without reasonable notice and excuse, failed to exercise the right to access or has not returned the child as the order requires, the person who has custody may apply for relief to the court that made the order for access. (6) Where the court is satisfied that the respondent without reasonable notice and excuse, failed to exercise the right to access or did not return the child as the order requires, the court may order (a) supervision under section 40; (b) the respondent to reimburse the applicant for reasonable expenses actually incurred as a result of the failure to exercise the right to access or to return the child as the order requires; and (c) the appointment of a mediator in accordance with section 37. (7) An application under subsection (1) or (5) shall be heard within 10 days after it has been served. (8) An application under subsection (1) or (5) shall not be made more than 30 days after the alleged wrongful denial or failure. (9) The application shall be determined on the basis of oral evidence only, unless the court gives leave to file an affidavit. (10) At the hearing of the application, unless the court orders otherwise, evidence shall be admitted only if it is directly related to (a) the alleged wrongful denial of access or failure to exercise the right of access or failure to return the child as the order requires; or (b) the respondent's reasons for the denial of access or failure to exercise access or return the child. (11) A person who is a party to a separation agreement made under section 64 of the Family Law Act may file the agreement with the Trial Division, together with the person's affidavit stating that the agreement is in effect and has not been set aside or varied. (12) When a separation agreement providing for access to a child at specific times or on specific days is filed in accordance with subsection (11), subsections (1) and (5) apply as if the agreement were an order of the court where it is filed. (13) Where the court is satisfied that a person has made a motion under subsection (1) or (5) in bad faith, the court shall only hear further applications by that person under this section by leave of the court.
(14)
Subsections (1) and (5) do not apply in respect of orders made under the Divorce Act, 1985
(
(15)
This section does not apply in respect of a denial of access or a failure to exercise a right of access or to return a child as the order or agreement requires that took place before 1988 c61 s41; 2009 c16 s9 Order restraining harassment 42. (1) On application, a court may make an interim or final order restraining a person from molesting, annoying or harassing the applicant or children in the applicant's lawful custody or from communicating with the applicant or children, except as the order provides, and may require the person to enter into the recognizance or post the bond that the court considers appropriate. (2) A person who contravenes a restraining order is guilty of an offence and upon summary conviction is liable, (a) in the case of a 1st offence, to a fine of not more than $1,000 or to imprisonment for a term of not more than 3 months, or to both; and (b) in the case of a 2nd or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than 2 years, or to both. (3) A police officer may arrest without warrant a person the police officer believes on reasonable grounds to have contravened a restraining order.
(4)
Subsections (2) and (3) also apply in respect of contraventions, committed after Order where child unlawfully withheld 43. (1) Where a court is satisfied upon application by a person in whose favour an order has been made for custody of or access to a child that there are reasonable grounds for believing that a person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on the applicant's behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to custody or access. (2) Where a court is satisfied upon application that there are grounds for believing, (a) that a person is unlawfully withholding a child from a person entitled to custody of or access to the child; (b) that a person who is prohibited by court order or separation agreement from removing a child from the province proposes to remove the child or have the child removed from the province; or (c) that a person who is entitled to access to a child proposes to remove the child or to have the child removed from the province and that the child is not likely to return, the court by order may direct a peace officer having jurisdiction in an area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order. (3) An order may be made under subsection (2) upon an application without notice where the court is satisfied that it is necessary that action be taken without delay. (4) The peace officer directed to act by an order under subsection (2) shall do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the order. (5) For the purpose of locating and apprehending a child in accordance with an order under subsection (2), a peace officer may enter and search a place where he or she has reasonable and probable grounds for believing that the child may be with the assistance and the force that are reasonable in the circumstances. (6) Where a social worker of the Department of Social Services is available, a peace officer may ask for his or her assistance to carry out an order under subsection (2).
(7)
An entry or a search referred to in subsection (5) shall be made only between (8) An order made under subsection (2) shall name a date on which it expires, which shall be a date not later than 6 months after it is made unless the court is satisfied that a longer period of time is necessary in the circumstances. (9) An application under subsection (1) or (2) may be made in an application for custody or access or at another time. Enforcement proceeding 44. Where a child is the subject of an enforcement proceeding respecting custody or access under section 54 or the subject of a proceeding under section 282 or 283 of the Criminal Code, a social worker employed with the Department of Social Services may take custody of the child for the purpose of facilitating his or her return to the person who has lawful custody of the child. Application to prevent removal of child 45. (1) Where a court, upon application, is satisfied upon reasonable and probable grounds that a person prohibited by court order or separation agreement from removing a child from the province proposes to remove the child from the province, the court in order to prevent the removal of the child from the province may make an order under subsection (3). (2) Where a court, upon application, is satisfied upon reasonable and probable grounds that a person entitled to access to a child proposes to remove the child from the province and is not likely to return the child to the province, the court in order to secure the prompt, safe return of the child to the province may make an order under subsection (3). (3) An order mentioned in subsection (1) or (2) may require a person to do 1 or more of the following: (a) transfer specific property to a named trustee to be held subject to the terms and conditions specified in the order; (b) where payments have been ordered for the support of the child, make the payments to a specified trustee subject to the terms and conditions specified in the order; (c) post a bond, with or without sureties, payable to the applicant in the amount that the court considers appropriate; (d) deliver the person's passport, the child's passport and other travel documents of either of them that the court may specify to the court or to an individual or body specified by the court.
(5) In an order under paragraph (3)(a), the court may specify terms and conditions for the return or the disposition of the property as the court considers appropriate. (6) A court or person or body specified by the court in an order under paragraph (3)(d) shall hold a passport or travel document delivered in accordance with the order in safekeeping in accordance with the directions set out in the order. (7) In an order under subsection (3), a court may give the directions in respect of the safekeeping of the property, payments, passports or travel documents that the court considers appropriate. Contempt of orders of 46. (1) In addition to its powers in respect of contempt, a Provincial Court judge may punish by fine or imprisonment, or both, a wilful breach of or resistance to its process or orders in respect of custody of or access to a child, but the fine shall not exceed $1,000 nor shall the imprisonment exceed 90 days. (2) An order for imprisonment under subsection (1) may be made conditional upon default in the performance of a condition set out in the order and may provide for the imprisonment to be served intermittently. Information as to address 47. (1) Where, upon application to a court, it appears to the court that, (a) for the purpose of bringing an application in respect of custody or access under this Part; or (b) for the purposes of the enforcement of an order for custody or access, the proposed applicant or person in whose favour the order is made needs to learn or confirm the whereabouts of the proposed respondent or person against whom the order referred to in paragraph (b) is made, the court may order a person or public body to provide the court with the particulars of the address of the proposed respondent or person against whom the order referred to in paragraph (b) is made that are contained in the records in the custody of the person or body, and the person or body shall give the court the particulars that are contained in the records and the court may then give the particulars to the person that the court considers appropriate. (2) A court shall not make an order on an application under subsection (1) where it appears to the court that the purpose of the application is to enable the applicant to identify or to obtain particulars as to the identity of a person who has custody of a child, rather than to learn or confirm the whereabouts of the proposed respondent for the enforcement of an order for custody or access. (3) The giving of information in accordance with an order under subsection (1) shall be considered for all purposes not to be a contravention of an Act or regulation or a common law rule of confidentiality. (4) Notwithstanding another Act or law restricting the disclosure of information, a person or public body, including the Crown, that receives a demand under subsection (1) shall provide the demanded information that is contained in its records. Interim powers 48. Upon application, a court (a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in the province; or (b) that may not exercise jurisdiction under section 28 or that has declined jurisdiction under section 30 or 50, may do 1 or more of the following: (c) make the interim order in respect of the custody or access that the court considers is in the best interests of the child; (d) stay the application subject to, (i) the condition that a party to the application promptly begin a similar proceeding before an extra-provincial tribunal, or (ii) other conditions that the court considers appropriate; or (e) order a party to return the child to the place that the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and parties to or witnesses at the hearing of the application. Enforcement of foreign orders 49. (1) Upon application by a person in whose favour an order for the custody of or access to a child has been made by an extra- provincial tribunal, a court shall recognize the order unless the court is satisfied (a) that the respondent was not given reasonable notice of the start of the proceeding in which the order was made; (b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made; (c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child; (d) that the order of the extra-provincial tribunal is contrary to public policy in the province; or (e) that, in accordance with section 28, the extra-provincial tribunal would not have jurisdiction if it were a court in the province. (2) An order made by an extra-provincial tribunal that is recognized by a court shall be considered to be an order of the court and enforceable as such. (3) A court presented with conflicting orders made by extra-provincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child. (4) A court that has recognized an extra-provincial order may make those further orders under this Part that the court considers necessary to give effect to the order. Superseding order, material change 50. (1) Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and (a) the child is habitually resident in the province at the start of the application for the order; or (b) although the child is not habitually resident in the province, the court is satisfied (i) that the child is physically present in the province at the start of the application for the order, (ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made, (iii) that substantial evidence concerning the best interests of the child is available in the province, (iv) that the child has a real and substantial connection with the province, and (v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in the province. (2) A court may decline to exercise its jurisdiction under this section where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the province. Superseding order, serious harm 51. Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm if (a) the child remains in the custody of the person entitled to custody of the child; (b) the child is returned to the custody of the person entitled to custody of the child; or (c) the child is removed from the province. True copy of extra-provincial order 52. A copy of an extra-provincial order certified as a true copy by a judge, other presiding officer or registrar of the tribunal that made the order or by a person charged with keeping the orders of the tribunal is, in the absence of evidence to the contrary, evidence of the making of the order, the content of the order and the appointment and signature of the judge, presiding officer, registrar or other person. Court may take notice of foreign law 53. For the purposes of an application under this Act, a court may take notice, without requiring formal proof, of the law of a jurisdiction outside the province and of a decision of an extra-provincial tribunal. Child Abduction Convention 54. (1) In this section "convention" means the Convention on the Civil Aspects of International Child Abduction set out in the Schedule. (2) The convention is continued in force in the province. (3) The Crown is not bound to assume costs resulting under the convention from the participation of legal counsel or from court proceedings except in accordance with the Legal Aid Act. (4) The Attorney General shall be the central authority for the province for the purpose of the convention. (5) An application may be made to a court in pursuance of a right or an obligation under the convention. (6) [Rep. 1991 c43 s3] (7) [Rep. 1991 c43 s3] (8) The Lieutenant-Governor in Council may make the regulations that are necessary to carry out the purpose of this section. (9) Where there is a conflict between this section and another Act, this section prevails. 1988 c61 s53; 1991 c43 s3 Definition 55. For the purpose of this Part "court" means the Trial Division. Appointment of guardian 56. (1) Upon application by a parent of a child or other person, a court may appoint a guardian of the property of the child. (2) A guardian of the property of a child has charge of and is responsible for the care and management of the property of the child. Parents as guardians 57. (1) As between themselves and subject to a court order or an agreement between them, the parents of a child are equally entitled to be appointed by a court as guardians of the property of the child. (2) As between a parent of a child and a person who is not a parent of the child, the parent has a preferential entitlement to be appointed by a court as a guardian of the property of the child. (3) A court may appoint more than 1 guardian of the property of a child. (4) Where more than 1 guardian of the property of a child is appointed, the guardians are jointly responsible for the care and management of the property of the child. Circumstances to consider 58. In deciding an application for the appointment of a guardian of the property of a child, the court shall consider all the circumstances, including, (a) the ability of the applicant to manage the property of the child; (b) the merits of plans proposed by the applicant for the care and management of the property of the child; and (c) the views and preferences of the child, where the views and preferences can reasonably be ascertained. Payment of debt due to child 59. (1) Where a person is under a duty to pay money or deliver personal property to a child and a guardian of the property of the child has not been appointed, the payment of not more than $2,000 or the delivery of the personal property to a value of not more than $2,000 in a year to (a) the child, if the child has a legal obligation to support another person; (b) a parent with whom the child lives; or (c) a person who has lawful custody of the child, discharges the duty to the extent of the amount paid or the value of the personal property delivered, but the total amount paid, or total value of property delivered, under this subsection in respect of the same obligation shall not exceed $5,000. (2) Subsection (1) does not apply in respect of money payable under a judgment or order of a court. (3) A receipt or discharge for money or personal property not in excess of the amount or value set out in subsection (1) received for a child by a parent with whom the child lives or a person who has lawful custody of the child has the same validity as if a court had appointed the parent or the person as a guardian of the property of the child. (4) A parent with whom a child lives or a person who has lawful custody of a child who receives and holds money or personal property referred to in subsection (1) has the responsibility of a guardian for the care and management of the money or personal property. Accounts 60. A guardian of the property of a child may be required to account or may voluntarily pass his or her accounts in respect of the care and management of the property of the child in the same manner as a trustee under a will may be required to account or may pass his or her accounts in respect of his or her trusteeship. Transfer of property to child 61. A guardian of the property of a child shall transfer to the child all property of the child in the care of the guardian when the child reaches the age of 19. Management fees and expenses 62. A guardian of the property of a child is entitled to payment of a reasonable amount for fees for and expenses of management of the property of the child. Bond by guardian 63. (1) A court that appoints a guardian of the property of a child shall require the guardian to post a bond, with or without sureties, payable to the child in the amount that the court considers appropriate in respect of the care and management of the property of the child. (2) Subsection (1) does not apply where the court appoints a parent of a child as guardian of the property of the child and the court is of the opinion that it is appropriate not to require the parent to post a bond. Where child marries 64. Upon application by a child who has a legal obligation to support another person, the court that appointed a guardian of the property of the child or a court in another judicial centre by order shall end the guardianship for the child. Removal of guardian 65. (1) A guardian of the property of a child may be removed by a court for the same reasons for which a trustee may be removed. (2) A guardian of the property of a child, with the permission of a court, may resign his or her office upon the conditions that the court considers appropriate. Court order re property of child 66. (1) Upon application by the parent of a child or other person, the court by order may require or approve, or both, (a) the disposition or encumbrance of all or part of the interest of the child in land; (b) the sale of the interest of the child in personal property; or (c) the payment of all or part of money belonging to the child or of the income from real or personal property belonging to the child, or both. (2) An order shall be made under subsection (1) only where the court is of the opinion that the disposition, encumbrance, sale or payment is necessary or appropriate for the support or education of the child or will substantially benefit the child. (3) An order under subsection (1) may be made subject to the conditions that the court considers appropriate. (4) The court shall not require or approve a disposition or encumbrance of the interest of a child in land contrary to a term of the instrument by which the child acquired the interest. (5) The court, where it makes an order under subsection (1), may order that the child or another person named in the order execute the documents necessary to carry out the disposition, encumbrance, sale or payment. (6) The court by order may give the directions that it considers necessary for the carrying out of an order made under subsection (1). (7) A document executed in accordance with an order under this section is as effective as if the child by whom it was executed was 19 years of age or, if executed by another person in accordance with the order, as if the child had executed it and had been 19 years of age at the time. (8) A person does not incur nor shall be considered to incur liability by making a payment in accordance with an order under paragraph (1)(c). Order for benefit of children 67. (1) Upon application by or with the consent of a person who has an estate for life in property with power to devise or appoint the property to 1 or more of his or her children, the court may order that the part of the proceeds of the property that the court considers appropriate be used for the support, education or benefit of 1 or more of the children. (2) An order may be made under subsection (1) whether or not (a) there is a gift over in the event that there are no children to take under the power; or (b) a person could dispose of the property in the event that there are no children to take under the power. Custody, appointment by will 68. (1) A person entitled to custody of a child may appoint by will 1 or more persons to have custody of the child after the death of the appointor. (2) A guardian of the property of a child may appoint by will 1 or more persons to be guardians of the property of the child after the death of the appointor. (3) An unmarried parent who is a minor may make an appointment mentioned in subsection (1) or (2) by a written appointment signed by the parent. (4) An appointment under subsection (1), (2) or (3) is effective only (a) if the appointor is the only person entitled to custody of or access to the child or who is the guardian of the property of the child, as the case requires, on the day immediately before the appointment is to take effect; or (b) if the appointor and another person entitled to custody of the child or who is the guardian of the property of the child, as the case requires, die at the same time or in circumstances that render it uncertain which survived the other. (5) Where 2 or more persons are appointed to have custody of or to be guardians of the property of a child by appointors who die as mentioned in paragraph (4)(b), only the appointments of the persons appointed by both or all of the appointors are effective. (6) An appointment under subsection (1), (2) or (3) is not effective without the consent of the person appointed. (7) An appointment under subsection (1), (2) or (3) for custody of a child or guardianship of the property of a child expires 90 days after the appointment becomes effective or, where the appointee applies under this Act for custody of the child or this Part for guardianship of the property of the child within the 90 day period, when the application is disposed of. (8) An appointment under this section does not apply to prevent an application for or the making of an order under section 28 or 54. (9) This section applies in respect of
(a)
a will made on or after
(b)
a will made before (10) An appointment under this section is effective on the death of the appointer without the granting of Letters of Probate. 1988 c61 s67; 1989 c11 s3 Procedure
69.
(1) An application under Parts (2) On the application of a party to the proceeding, the court may hear a matter in private. (3) An application under this Act may be an original application or for the variance of an order previously given or to supersede an order of an extra-provincial tribunal. (4) The parties to an application under Parts III and IV in respect of a child shall include (a) the mother and the father of the child; (b) a person who has demonstrated a settled intention to treat the child as a child of his or her family; (b.1) a grandparent of the child; (c) a person who had the actual care and upbringing of the child immediately before the application; and (d) another person whose presence as a party is necessary to determine the matters in issue. (5) Where, in an application under this Act, it appears to the court that it is necessary or desirable in the best interest of the child to have other matters first or simultaneously determined, the court may direct that the application stand over until those other proceedings are brought or determined that the court considers appropriate. (6) Where there is no presumption of paternity and the identity of the father is not known or is not reasonably capable of being ascertained, the court may order substituted service or may dispense with service of documents upon the father in the proceeding. 1988 c61 s68; 1995 c27 s1 Application or response by minor 70. (1) A minor who is a parent may make an application under this Act without the need for a guardian to be appointed for the purpose and may respond without a guardian. (2) A consent in respect of a matter provided for by this Act is not invalid by reason only that the person giving the consent is a minor. Child entitled to be heard
71.
(1) In considering an application under Parts (2) A judge may interview the child to determine the views and preferences of the child. (3) The interview shall be recorded unless otherwise agreed to by the parties and the judge. (4) The child is entitled to be advised by and to have a counsel present during the interview. Best interests of child paramount 72. In a proceeding before a court, where the custody or upbringing of a child is in question, the court, in deciding that question, shall regard the best interests of the child as the first and paramount consideration, notwithstanding whether the claim of the father, or a right at common law possessed by the father, in respect of the custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. Child of 16 years or more 73. Nothing in this Act abrogates the right of a child of 16 or more years of age to withdraw from parental control. All proceedings in 1 court 74. Except as otherwise provided, where an application is made to a court under this Act, no person who is a party to the proceeding shall make an application under this Act to another court in respect of a matter in issue in the proceeding, but the court may order that the proceedings be transferred to a court having other jurisdiction where, in the opinion of the court, the court having other jurisdiction is more appropriate to determine the matters in issue that should be determined at the same time. Procedure 75. (1) Matters under this Act which are heard in the Trial Division may be governed by the Divorce Rules of the Supreme Court of Newfoundland and Labrador or the Rules of the Supreme Court, 1986 .
(2)
The procedure in the (3) The provisions of the Criminal Code respecting bail, bail hearings and delay in release shall apply to a proceeding before the Trial Division where applicable. 1988 c61 s74; 1989 c11 s3; 2001 cN-3.1 s2; 2009 c16 s9 Consent orders
76.
(1) Upon the consent of the parties in an application under Parts (2) A matter provided for in this Act and in a domestic contract as defined in theFamily Law Act may be incorporated in an order made under this section. Part subject to contracts 77. Where a domestic contract as defined in theFamily Law Act makes provision in respect of a matter that is provided for in this Act, the contract prevails except as otherwise provided in Part IV of the Family Law Act. Jurisdiction of Supreme Court 78. This Act does not deprive the Supreme Court of its inherent jurisdiction to make orders with respect to children. Place of application for interim order 79. (1) An application for an interim order shall be made to the court in which the original proceeding was taken. (2) An application under Parts III and IV to vary an order may be made to the court in the judicial centre in which the original proceeding was taken or the same court in another judicial centre in the province. Interim order 80. In a proceeding under this Act, the court may make the interim order that the court considers appropriate. Right of appeal 81. (1) An appeal lies from an order or decision of a court under this Act within 30 days of the date of the order or decision appealed from (a) to the Court of Appeal where the order under appeal was made by a judge of the Trial Division; or
(b)
to the Trial Division where the order under appeal was made by a
(2)
There is no appeal from an order or decision of the Trial Division with respect to an appeal from an order or decision of a 1988 c61 s80; 2004 c47 s6; 2009 c16 s9 Order effective pending appeal 82. An order under this Act is effective notwithstanding that an appeal is taken from the order, unless the court that made the order or the court to which the appeal is taken orders otherwise. Rule of construction 83. (1) For the purposes of construing an instrument, Act or regulation, unless the contrary intention appears, a reference to a guardian with respect to the person of a child shall be construed to refer to custody of the child and a reference to a guardian with respect to property of a child shall be construed to refer to guardianship of the property of the child.
(2)
Subsection (1) applies to an instrument, an Act or a regulation, order or by-law made under an Act enacted or made before, on or after Schedule CONVENTION ON THE CIVIL ASPECTS OF The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions: CHAPTER I - SCOPE OF THE CONVENTION Article 1 The objects of the present Convention are:
(a)
to secure the prompt return of children wrongfully removed to or retained in a
(b)
to ensure that rights of custody and of access under the law of one Article 2 Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available. Article 3 The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in subparagraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 4
The Convention shall apply to a child who was habitually resident in a Article 5 For the purposes of this Convention: (a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; and (b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. CHAPTER II - CENTRAL AUTHORITIES Article 6
A
Article 7 Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly of through an intermediary, they shall take all appropriate measures: (a) to discover the whereabouts of a child who has been wrongfully removed or retained; (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) to exchange, where desirable, information relating to the social background of the child; (e) to provide information of a general character as to the law of their State in connection with the application of the Convention; (f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; (g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) to provide those administrative arrangements that may be necessary and appropriate to secure the safe return of the child; (i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate obstacles to its application. CHAPTER III - RETURN OF CHILDREN Article 8 A person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of another Contracting State for assistance in securing the return of the child. The application shall contain: (a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child; (b) where available, the date of birth of the child; (c) the grounds on which the applicant's claim for return of the child is based; (d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by: (e) an authenticated copy of a relevant decision or agreement; (f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State; (g) any other relevant document. Article 9 If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be. Article 10 The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child. Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be. Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of wrongful removal or retention, the authority concerned shall order the return of the child immediately. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence. Article 14 In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in, the State of the habitual residence of the child without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. Article 15 The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. Article 17 The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. Article 18 The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time. Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of a custody issue. Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. CHAPTER IV - RIGHTS OF ACCESS Article 21 An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set out in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of the rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject. CHAPTER V - GENERAL PROVISIONS Article 22 No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention. Article 23 No legalization or similar formality may be required in the context of this Convention. Article 24 An application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English.
However, a Article 25 Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in another Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State. Article 26 Each Central Authority shall bear its own costs in applying this Convention. Central Authorities and other public services of Contracting States shall not impose charges in relation to applications submitted under this Convention. In particular, they may not require a payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.
However, a Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child. Article 27 When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall immediately inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons. Article 28 A Central Authority may require that the application be accompanied by a written authorization empowering it to act on behalf of the applicant, or to designate a representative to act. Article 29
This Convention shall not preclude a person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Article 30
An application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Article 31 In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units: (a) a reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State; (b) a reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides. Article 32 In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, a reference to the law of that State shall be construed as referring to the legal system specified by the law of that State. Article 33 A State within which different territorial units have their own rules of law in respect of custody of children shall not be bound to apply this Convention where a State with a unified system of law would not be bound to do so. Article 34
This Convention shall take priority in matters within its scope over the Convention of Article 35 This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.
Where a declaration has been made under Article 39 or 40 the reference in the preceding paragraph to a Article 36 Nothing in this Convention shall prevent two or more Contracting States, in order to limit the restrictions to which the return of the child may be subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction. CHAPTER VI - FINAL CLAUSES Article 37 The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fourteenth Session.
It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Article 38 Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession.
The accession will have effect only as regards the relations between the acceding State and those The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. Article 39
A State may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect at the time the Convention enters into force for that State. The declaration, as well as a subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Article 40 If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.
Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Article 41 Where a Contracting State has a system of government under which executive, judicial and legislative powers are distributed between central and other authorities within that State, its signature or ratification, acceptance or approval of, or accession to this Convention, or its making of a declaration in terms of Article 40 shall carry no implication as to the internal distribution of powers within that State. Article 42 A State may, not later than the time of ratification, acceptance, approval or accession, or at the time of making a declaration in terms of Article 39 or 40, make one or both of the reservations provided for in Article 24 and Article 26, third paragraph. No other reservation shall be permitted.
A State may at any time withdraw a reservation it has made. The withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom of the The reservation shall cease to have effect on the first day of the third calendar month after the notification referred to in the preceding paragraph. Article 43 The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance, approval or accession referred to in Articles 37 and 38. Thereafter the Convention shall enter into force: 1. for each State ratifying, accepting, approving or acceding to it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance, approval or accession; and 2. for a territory or territorial unit to which the Convention has been extended in conformity with Article 39 or 40, on the first day of the third calendar month after the notification referred to in that Article. Article 44 The Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 43 even for States which subsequently have ratified, accepted, approved it or acceded to it. If there has been no denunciation, it shall be renewed tacitly every five years.
A denunciation shall be notified to the Ministry of Foreign Affairs of the Kingdom of the The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States. Article 45
The Ministry of Foreign Affairs of the Kingdom of the 1. the signatures and ratifications, acceptances and approvals referred to in Article 37; 2. the accessions referred to in Article 38; 3. the date on which the Convention enters into force in accordance with Article 43; 4. the extensions referred to in Article 39; 5. the declarations referred to in Articles 38 and 40; 6. the reservations referred to in Article 24 and Article 26, third paragraph, and the withdrawals referred to in Article 42; 7. the denunciations referred to in Article 44.
Done at 1988 c61 Sch ©Earl G. Tucker, Queen's Printer |