Activities and Priorities Dept. Justice Private International Law 2007

C. FAMILY LAW 1. HIGH PRIORITIES

a. Convention on the International Protection of Adults (Hague Conference)

[178] This Convention creates global legal solutions to address the problems raised by increased cross-border movement of adults in need of protection. Modelled after the 1996 Convention on the Protection of Children, the 2000 Convention on the Protection of Adults provides for the protection of those adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect the interests of their own person or property. This Convention deals in particular with the determination of incapacity and the institution of a protective regime; the placing of the adult under the protection of a judicial or administrative authority; guardianship, curatorship and analogous institutions; the designation and functions of any person or body having charge of the adult's person or property, representing or assisting the adult; the placement of the adult in an establishment or other place where protection can be provided; the administration, conservation or disposal of the adult's property; and the authorisation of a specific intervention for the protection of the person or property of the adult.

[179] The Department of Justice in collaboration with the ULCC prepared a Uniform Act for the implementation of the 2000 Hague Convention on the International Protection of Adults. The Act was adopted by the ULCC in November 2001. Saskatchewan adopted the ULCC Uniform Act in May 2005.

[180] In October 2005, Justice Canada made a presentation on the Convention to the Biennial Conference of the National Association of Public Trustees and Guardians in Regina, Saskatchewan. Following that meeting, a small, informal group of public trustees from British Colombia, Ontario, Saskatchewan and the Northwest Territories has met by conference call with Justice Canada to work on promoting the Convention. During the year, the Department raised the Convention with senior officials in all jurisdictions.

[181]In November 2006, a broader FPT meeting to discuss Central Authority roles and responsibilities was held in Ottawa to which public trustees and guardians and ULCC jurisdictional representatives were invited. Ten jurisdictions were represented, including the federal government, with participation from public trustees or guardians or ULCC jurisdictional representatives, or both. Federal participation included Justice, consular Affairs Bureau and federal Central Authorities for the Abduction and Adoption Conventions.

[182]The purpose of the meeting was to assist Canadian jurisdictions who need to evaluate and address resource requirements arising from the Convention in order to facilitate implementation. Participants were invited to consider: the role of central authorities and competent authorities under the Convention; how these roles are applicable to Canadian court services, to public trustees, to public guardians and to other officials; what the implications are for these officials in Convention cases for persons in Canada and in Convention cases involving Canadians abroad; how other jurisdictions have dealt with similar questions; and other aspects of implementation including public education.

[183]The discussions were most helpful and led to a greater understanding of the implications of the Convention’s implementation. Unfortunately resources have not allowed the Department of Justice to continue at this time the follow-up needed to advance.

[184] The final explanatory report of the Convention is available on the Hague Conference website.

[185] Action required in Canada: Follow up in the November 2006 meeting with reports and relevant documents to facilitate consideration of implementation.

b. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (Hague Conference)

[186] The 1996 Hague Convention on the Protection of Children creates global legal solutions to address the problems raised by the increase in the trans-border movement of children and adults in need of protection. More specifically, the Convention establishes conflict of law rules to deal with a variety of matters including parental responsibility, as well as its delegation; rights of custody; guardianship, curatorship and analogous institutions; the designation and functions of any person or body having charge of the child's person or property; representing or assisting the child; the placement of the child in a foster family or in institutional care; the supervision by a public authority of the care of a child by any person having charge of the child; and the administration, conservation or disposal of the child's property.

[187] The Department of Justice is currently working with FPT groups to promote the implementation of the Convention. The Coordinating Committee of Senior Officials-Family Justice (CCSO) Working Group on Parenting and Contact Enforcement and Jurisdiction examined the Convention’s conflict of law rules and their application to international as well as inter-provincial situations in view of harmonizing domestic rules.

[188] The Department of Justice in collaboration with the ULCC prepared a uniform act for the implementation of the 1996 Convention. This act was adopted by the ULCC in November 2001. The CCSO Working Group is now identifying important consequential amendments that would be required in provincial family law in order for Canada to properly apply the Convention. The position of the Working Group is that the Convention could serve as a model for inter-provincial harmonization in order to ensure more uniform inter-jurisdictional operation in these matters, in addition to the proper functioning of the Convention in Canada in actual international cases.

[189] In September 2006, the Working Group presented its draft report on the Convention to CCSO Family Justice. A final version of the report is being developed for future presentation. In the meantime, Justice Canada is coordinating an F-P-T consultation with CCSO Family Justice. The consultation methods anticipated were presented to Deputy Ministers of Justice in June 2007 and approved.

[190] In November 2006, the Hague Conference Special Commission to review the operation of the 1980 Convention on the Civil Aspects of International Child Abduction and the practical implementation of the 1996 Convention for the protection of children recommended that the Permanent Bureau begin work on the preparation of a practical guide to the 1996 Convention to provide advice on the factors to be considered in the process of implementing the Convention into national law and to assist in explaining the practical application of the Convention. It is anticipated that European Union states will soon be implementing the Convention.

[191] Action required in Canada: Continue working with FPT working groups. Finalize consultations regarding implementation. Active promotion of implementation of the Convention in Canada.

c. Draft Convention on the International Recovery of Support Orders and Other Forms of Family Maintenance (Hague Conference)

[192] The Hague Conference on Private International Law is preparing a new international instrument in relation to the enforcement of support orders.

[193] In April 1999, a Special Commission of the Hague Conference reviewed the 1956 and 1973 Hague Conventions on the Law Applicable to Maintenance Obligations, the 1958 and 1973 Hague Conventions on the Recognition and Enforcement of Decisions relating to Maintenance Obligations as well as the United Nations’ 1956 New York Convention on the Recovery Abroad of Maintenance. Canada is not a party to any of the Conventions, but has an interest in the subject.

[194] Several problems with these Conventions were identified: the complete failure of some States to carry out their obligations under the Conventions; differences of interpretation, practice and enforcement under the Conventions; cumulative application of the Conventions; and practical issues, such as the best method of transferring funds. Moreover, the Conventions have not met the needs of the dependants requiring support, The New York Convention has contributed, in part, to inconsistent interpretation and practice, various changes have occurred in national legislation, and the proliferation of international instruments has created a complex system.

[195] In June 2001, the Hague Conference decided to include the project as a priority. Five Special Commissions have been held: from May 5 to 16, 2003, June 7 to 18, 2004, April 4 to 15, 2005, June 19 to 28, 2006 and May 8-16, 2007. All existing documents relevant to those Special Commissions are available on the Hague Conference website.

[196] The Canadian delegation to the fifth Special Commission was composed of Danièle Ménard, Counsel with the Family, Children and Youth Section of the Department of Justice Canada and federal co-chair of the Interjurisdictional Support Sub-Committee, Denise Gervais, civil law expert from Quebec and member of the Coordinating Committee of Senior Officials – Family Justice, and Tracy Morrow, common law expert from Manitoba and the provincial co-chair of the Interjurisdictional Support Sub-Committee.

[197] The fourth session was set up primarily to deal with crucial issues left from other special commissions and that needed to be addressed before the Hague Conference convenes a Diplomatic Conference. The issues that were discussed were:

  • Scope of application
  • Functions of the Central Authorities
  • Applications directly made by the applicant to the competent authority for the recognition of maintenance decisions
  • Use of the expression “habitual residence” in all the chapters of the Convention
  • Possibility for the debtor to ask for the establishment of a maintenance decision
  • Conditions and framework for a free and effective access to procedures
  • Possible reservations on certain basis for recognition and enforcement of maintenance decisions
  • Conditions in order to recognize and enforce private agreements and authentic instruments under the convention
  • Interpretation clause for the application of the Convention to non-unified legal systems
  • Optional chapter on applicable law.

[198] The fifth Special Commission focussed on the optional Chapter on applicable law and the issue of free and effective access to procedures under the Convention. A diplomatic conference to finalize the instrument will be held in November 2007.

[199] Action required in Canada: Consultations in preparation for the next Special Commission in May 2007 and for the Diplomatic Conference.

d. Convention on Intercountry Adoption (Hague Conference)

[200] The Convention provides rules for an orderly and harmonised process for international adoption encouraging cooperation between countries of origin and receiving countries. It aims to assure a rapid and flexible process, in the best interests of the children concerned. The implementation of the Convention has had a positive impact on Canadian international adoption.

[201] The Convention entered into force in Canada on April 1, 1997 in the five provinces which were the first to enact implementing legislation, i.e. British Columbia, Prince Edward Island, Manitoba, New Brunswick and Saskatchewan. On November 1, 1997, the Convention entered into force for Alberta; on August 1, 1998 for the Yukon; on October 1, 1999 for Nova Scotia; on December 1, 1999 for Ontario; the Northwest Territories on April 1st 2000, Nunavut on September 1, 2001 and Newfoundland and Labrador on December 1, 2003. In April 2004, Quebec adopted implementing legislation and the Act entered into force on February 1st, 2006.

[202] The Hague Conference convened a Special Commission from September 17-23, 2005 in order to discuss the practical operation of the Hague Convention. The Canadian delegation was composed of Manon Dostie (IPLS, Justice Canada), Luce de Bellefeuille (Central Authority for Quebec), Tamara Leonard-Veil (Central Authority for British Columbia) and Patricia Paul-Carson (Federal Central Authority, Social Development Canada).

[203] The Special Commission adopted a set of conclusions and recommendations on the practical operation of the Hague Convention. These conclusions and recommendations are available on the Hague Conference’s website.

[204] Action required in Canada: Continue follow-up on the recommendations and conclusions adopted at the Special Commission of September 2005.

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