My family and I are us residents, my wife decided to take the kids to Canada one day and not return. We are not

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Customer: Hi my family and I are us residents, my wife decided to take the kids to Canada one day and not return
JA: What steps have you taken? Have you filed any papers in family court?
Customer: We are not divorced
JA: Family law varies by province. What province are you in?
Customer: Toronto ON
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: That's it for now.
Answered by ToLawyer in 7 mins 12 months ago
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Jessica

Jessica

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ToLawyer, Expert

Welcome and thank you for choosing Just Answer, an independent paid Q&A service! My name is***** am a lawyer in Canada and would be happy to assist you.

Please be advised that I am working from my computer and may not always be available immediately. Rest assured, I will get to your response as fast as I am able.

Customer
Hi JC
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ToLawyer, Expert

Hi there, how long as it been since your wife left? Has the kids resettled in Canada?

Customer
2 months
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ToLawyer, Expert

Is there a custody arrangement between the two of you?

Customer
No
Customer
We're still married
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ToLawyer, Expert

Hmm, then she does have the right to move the children. Are you about to go through divorce proceedings, this is an extremely odd situation.

Customer
No
Customer
Not yet
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ToLawyer, Expert

Has the children been resettled into canada? Did they enroll in schools?

Customer
Hi
Customer
But they are not Canadian
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ToLawyer, Expert

You may need to apply in Canada for custody arrangement. The children would likely fall under Canadian jurisdiction.

Customer
Even with hague convention to return the kids back to their birthplace
Customer
She abducted them, has she not
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ToLawyer, Expert

No, because she has a right to travel and make decisions for them. The wrongful action is to deprive your right to travel and make decisions for them.

Customer
I can go to Canada and fully see them?
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ToLawyer, Expert

That is correct, unless a custody order states otherwise.

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ToLawyer, Expert

She does have a right to refuse to to let you into the premesis that the kids are residing. This needs to be dealt with before the courts, you need a court order for a judge to make a decision.

Customer
Ok.
Customer
What about the Hague convention
Customer
Doesn't that come into play?
Customer
Isn't Canada respect the right for children to return to their place of residence?
Customer
Isn't it illegal to abduct a child internationally?
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ToLawyer, Expert

It is only an abduction if she does not have the right to a child - i.e., she is deprived of that right via a custody order where you have sole custody.

Customer
I see. So what do I do at this point?
Customer
I'm trying to understand this The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
Customer
What you're saying is that she has not abducted the children, correct?
Customer
The US is the childrens habitual residence, and I still have custody
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ToLawyer, Expert

Yes, because your child was not wrongfully removed. The wrong again, is that she has deprived you of access and control to a child.

This is the definition of abduction under the hague:

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 any 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 sub-paragraph 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.

Customer
Ok, so since she has deprived me of access and control, what's my next step?
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ToLawyer, Expert

You will need to get an order for the custody of the child. If she disobays that order, that may be abduction.

Customer
How do I do that?
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ToLawyer, Expert

You need to file a family law action in the court where the child habitually resides. I personally think it is Ontario Canada if the children goes to school here.

Customer
Well, they were born and raised in the US
Customer
She just recently placed them in school in Ontario
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ToLawyer, Expert

You should speak with your local family lawyer to see what they think. The court where you are may refuse to exercise jurisdiction.

Customer
Ok, so if I am able to get a court order from the US, how might this play out. Again their place of habitual residence is in NJ USA
Customer
They were being homeschooled
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ToLawyer, Expert

Then you will try to enforce that order in Canada, and call the Canadian police to state that she is violating the custody order.

Customer
I see.
Customer
step one get a custody court order from US
Customer
Then come to enforce it in Canada via Canadian police. Is this correct.
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ToLawyer, Expert

Correct.

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ToLawyer, Expert

Step one is to get a custody order, either in the US or in Canada in your favour.

Customer
Ok,
Customer
Will she be contacted while I am getting the order?
Customer
As she is not in the US?
Customer
Not sure how the court order process works
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ToLawyer, Expert

Yes, she will, you will have an obligation to serve her.

Customer
I understand. What if she claims that I am violent?
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ToLawyer, Expert

Then it will be up to the judge to decide whether you should have custody of the child.

Customer
I see, and this judge may be in the US or Canada?
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ToLawyer, Expert

It depends on which judge choose to exercise their jurisdiction.

Customer
I see. How long is the process take usually?
Customer
Does*
Customer
To get a court order?
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ToLawyer, Expert

Could take a few months. If it is urgent, it may proceed fairly quickly, maybe a month.

Customer
Ok, and if the judge exercises his judgement in the US
Customer
Does she need to come to the US on that case
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ToLawyer, Expert

The judge may allow her to attend online over video chat, it depends.

Customer
Ok I see
Customer
Thank you so much.
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ToLawyer, Expert

You are very welcome! anything else I can help you with today?

Customer
That's all for now.
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ToLawyer, Expert

I understand legal issues may be frustrating, but I hope I was able to provide a little clarity here.

Thank you for trusting us here at JustAnswer. If you have a new question in the future and would like to engage me again, please do not hesitate to request for me directly by typing - "This is only for JC" and I will get to you as soon as possible!

And of course, if you have any follow-up questions, please do not hesitate to continue typing them here.

Customer
This is only for JC
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ToLawyer, Expert

Ok.

Ask a lawyer and get your legal questions answered.
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