Activities and Priorities of Dept. Justice in Private International Law 2003

C. FAMILY LAW

1. HIGH PRIORITIES

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

and

b. Convention on Parental Responsibility and Measures of Protection of Children (Hague Conference)

[171] - Subject: In November 2001, the Uniform Law Conference of Canada adopted two Uniform Acts for the implementation of both the 2000 Hague Convention on the International Protection of Adults and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. The Working Group was led by Manon Dostie, Legal Counsel of the Private International Law Team of the Department of Justice of Canada, and included representatives from many provinces.

[172] These Conventions create global legal solutions to address the problems raised by the increase in the transborder movement of children and adults in need of protection.

[173] More specifically, the 1996 Hague Convention on the Protection of Children deals with 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.

[174] Modelled after the 1996 Convention, the 2000 Convention on the International 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.

[175] The final explanatory reports of the Conventions are available on the Hague Conference web site at: www.hcch.net.

[176] Action required in Canada: Consult with provinces and territories and encourage them to implement these Conventions.

c. Possible Convention on Maintenance Obligations (Hague Conference)

[177] - Subject: As part of its 2000-2004 Work Program, the Hague Conference on Private International Law will prepare a new international instrument in relation to maintenance obligations.

[178] 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.

[179] 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.

[180] In June 2001, the Hague Conference decided to include the project as a priority for its 20th Diplomatic Session. In July 2002, a note and a questionnaire were sent to the governments in preparation of the Special Commission. Canada's answer to the Questionnaire is available upon request. A Special Commission was held from May 5 - 16, 2003.

[181] The Canadian delegation to the Special Commission comprised Manon Dostie, Counsel with the Private International Law Team; Danièle Ménard, Counsel with the Family, Children and Youth Section and federal co-chair of the Interjurisdictional Support Sub-Committee; Denise Gervais, civil law expert from Québec, and Tracy Morrow, common law expert from Manitoba and the provincial co-chair of the Interjurisdictional Support Sub-Committee.

[182] Action required in Canada: Consultations in preparation for the next Special Commission (May 2004).

2. MEDIUM PRIORITIES

a. Convention on Intercountry Adoption (Hague Conference)

[183] - Subject: 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 will have real impact on Canadian international adoption practices.

[184] The Convention entered into force in Canada on April 1st 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 1st 1997, the Convention entered into force for Alberta; on August 1st 1998 for the Yukon; on October 1st 1999 for Nova Scotia; on December 1st 1999 for Ontario; the Northwest Territories on April 1st 2000, Nunavut on September 1st 2001 and Newfoundland on December 1st 2003.

[185] Action required in Canada: Possible implementation in Quebec.

b. Convention on the Civil Aspects of International Child Abduction (Hague Conference)

[186] - Subject: This Convention, which is the first Hague Convention to be ratified by Canada, has been in force across Canada since 1983 with the exception of Nunavut. The Convention was extended to Nunavut on January 1st, 2001.

[187] The Convention provides for an expeditious remedy in order to obtain the return to the State of habitual residence of a child who has been unlawfully removed to or who is unlawfully retained in another country in breach of custody rights. Each State party is required to establish a Central Authority to deal with requests for the return of abducted children or for assistance in the exercise of access rights.

[188] In Canada, there is a Central Authority in every province and territory within the Ministry of the Attorney General or the Department of Justice. The federal Central Authority is located in the federal Department of Justice Legal Services Unit at the Department of Foreign Affairs. A transportation programme facilitates the repatriation of children who have been abducted by a parent; the programme operates domestically and as well as internationally. The programme is co-ordinated by the Royal Canadian Mounted Police (RCMP) Missing Children's Registry,

(tel.: 1-877-318-3576) in cooperation with the national airlines and Via Rail.

[189] A database of judicial decisions taken under the Hague Convention on the Civil Aspects of Child Abduction is available at <http://www.incadat.com>. It is hoped that this will facilitate a uniform interpretation of the Convention across all Contracting States. Relevant decisions from the central authorities will be collected and forwarded to the Permanent Bureau of the Hague Conference.

[190] A new round of consultations has been initiated on Canada's acceptance of the accessions by Brazil, El Salvador, Estonia, Malta, Nicaragua, Peru, Sri Lanka, Trinidad and Tobago, Uruguay and Uzbekistan to the Convention.

[191] The Permanent Bureau convened a Special Commission from September 27 to October 1, 2002 to discuss a Good practice guide, transfrontier access and judicial communications. The Commission adopted a Good Practice Guide which includes both implementing measures and Central Authority practices. Canada was unable to attend due to budgetary constraints.

[192] - Action required in Canada: Follow-up on the accession process.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018