Proceedings of the Standing Senate Committee on
Human Rights
Issue 7 - Evidence - May 5, 2014
OTTAWA, Monday, May 5, 2014
The Standing Senate Committee on Human Rights met this day, at 5 p.m., to study the international mechanisms toward improving cooperation in the settlement of cross-border family disputes, including Canada's actions to encourage universal adherence to and compliance with the Hague Abductions Convention, and to strengthen cooperation with non-Hague State Parties with the purpose of upholding children's best interests.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Welcome to the tenth meeting of the Standing Senate Committee on Human Rights.
[Translation]
We have a mandate from the Senate to study human rights issues in Canada and around the world. My name is Mobina Jaffer and, as chair of this committee, I am pleased to welcome you to this meeting.
[English]
Before I continue, I would like my colleagues to introduce themselves, starting with Senator Unger.
Senator Unger: I'm Betty Unger from Edmonton, Alberta.
Senator Seidman: Judith Seidman from Montreal, Quebec.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu, Sherbrooke, Quebec.
[English]
The Chair: At our meeting on December 2, 2013, the committee agreed to study international mechanisms to resolve cross-border family disputes.
[Translation]
The purpose of this study is to improve co-operation in the settlement of cross-border family disputes, including Canada's actions to encourage universal adherence to and compliance with the Hague Abductions Convention, and to strengthen co-operation with non-Hague State Parties with the purpose of upholding children's best interests.
[English]
The problem of international parental child abduction, while not new, has grown over the past few decades with general increases in international travel, international relationships and rates of divorce and legal separation. In such cases, a child is removed from his or her home environment, referred to as the habitual residence, transported to another jurisdiction by one parent, and may or may not have any further contact with the parent left behind.
[Translation]
Cases of international parental abduction can be particularly trying for the individuals involved. Depending on the case, the abduction may have serious social, psychological and even physical consequences on the child and on the parent left behind. In addition, the differences between the legal systems from state to state and the geographical distance are often obstacles that make locating and returning the abducted child who has been removed from the country, a difficult international legal problem to resolve.
[English]
To begin our hearings today, I would like to welcome, by way of video conference, Deputy Chief Murray Stooke from the Calgary Police Service.
Deputy Chief Stooke, I'm very grateful to you; I know it was on very short notice that you agreed to meet with us. The committee really wanted to hear from a provincial police force as to the challenges you face. We look forward to hearing from you. After you have spoken we may have some questions.
Deputy Chief Murray Stooke, Calgary Police Service: I want to thank the committee for its invitation to provide the experiences and observations of the Calgary Police Service in respect of international child abductions.
In our situation, we have had only three such matters in the last year and a total of perhaps nine or ten over the last five years within our jurisdiction. Perhaps I can provide the committee with a very brief thumbnail of each of those three cases in the last year and then comment on our observations on how we were impacted and how the regime worked.
The first case occurred in October of last year. A family from the United States, a mom and an adult son, crossed the border at Estevan, Saskatchewan. They returned to a nearby area five hours later to pick up the three children who were dropped off on the U.S. side and who were required to cross into Canada under the cover of nightfall. A public alert went out, as it was clear that this person has crossed into Canada. A Calgary social services worker contacted the Calgary police to advise us that they believed they had the person matching that description who was seeking services.
We were able to locate the family. As part of our investigation, we liaised with the CBSA, which issued a warrant under the Immigration and Refugee Protection Act, and the mother was apprehended under that order. The children were apprehended by child protection authorities under a judge's order.
The second situation was just a few weeks back, in January. A mother who was living and working in Calgary with her husband, a Mexican national, had reported that she had been in an abusive relationship. The marriage broke down. The couple returned to Mexico. But after Christmas, the mother returned to Canada with the children. She advised us that she had been in an abusive relationship and that the husband had attempted to abduct the children in Mexico.
In that case, we liaised with the Crown, the RCMP and CBSA. Our investigation is continuing, no charges were laid, and the mom is continuing to live and work in Calgary.
The last case I'll be speaking about originates out of Spain. We were advised about three weeks ago that a mother and daughter had arrived at Calgary International Airport from Spain. The mother is a Canadian citizen, and she was able to enter Canada on a photocopy of an expired Canadian passport.
The RCMP were notified through INTERPOL that the daughter had been reported abducted by the father. The Calgary police were contacted, and we were able to locate mother and daughter in a hotel in Calgary. We interviewed the child and the mom, as did child protection authorities. At that point, the child was left with the mother, and the mother entered a Calgary family violence shelter. That investigation is continuing.
I will give you a general overview of how things work. In the initial minutes of a complaint of an international child abduction, there is a great deal of uncertainty. We will be contacted typically by the RCMP liaison officer. They have only partial information, usually. It's not clear whether there's a custody order in place in the home country or if there was an arrest warrant for the abduction. This confusion clears up over a number of hours as investigative steps are taken.
So it is a difficult circumstance. It's difficult to proceed quickly and with a clear direction because all the facts are not in.
At the Calgary police, we try to centralize these investigations. We have a 24-hour operations centre in Calgary where we would provide support once the complaint comes in. We then call out our domestic conflict unit, who are the specialists who work on child abduction matters. We also work with our child protection partners in Alberta and advance the file from there.
I have a number of thoughts in respect of education, prevention and enforcement issues that crop up in these matters, and I'll turn to those now.
We don't seem to have recent police training that's been published touching on the issue. There is training that goes back to 1998, but our police service, at least, does not have updated materials at the moment governing our authorities on these complicated issues. In Canada, we do have something called the Canadian Police Knowledge Network, which is computer-based training that most police officers in Canada can access and would be perhaps a good module for that forum, or web materials as well.
It would be helpful to have a checklist for police investigators and RCMP liaison officers to ensure we are covering off all bases in each case. They are all different and questions have to be covered.
We think increased scrutiny at Canadian exit and entry points would assist in perhaps preventing some of the parental abduction cases and of course the flag would be particularly when only one parent is present.
We wonder whether or not the federal-provincial-territorial ministers can work with provincial authorities, perhaps through amending legislation, to allow our child protection statutes to consider suspicion of parental abduction as some evidence that a child may be in need of care so provincial child protection authorities can be involved in these matters as a matter of course. The example of the mom who arrived in Calgary recently from Spain is a good point on that one. We have no authority to require mom to stay in Calgary or not to move on to another jurisdiction, and at present, the child protection authorities have not taken jurisdiction over the child.
As well, along the line of the federal-provincial-territorial ministers, perhaps we could review the potential utility of an order under child protection legislation to restrict the movements of a parent suspected of abducting a child, along with provisions for appropriate supervision of a child, in order that child protection authorities can adopt jurisdiction over that family.
Finally, it would probably be useful to have protocols that are more formalized between us and RCMP liaison officers that set out the checklists and which agencies are responsible for taking which steps. These things would also likely be helpful as well.
I look forward to your questions.
The Chair: Thank you very much. You have provided us with some useful information. As you know, we have heard from the RCMP, so this helps us even more with our study.
I have a quick question for you before I go to the other members. You spoke about a U.S. case. Was an AMBER Alert already in place? Is that how you were alerted?
Mr. Stooke: There was not a former AMBER Alert but there was a media alert. I believe after U.S. authorities determined that children were missing, they contacted the CBSA and found out that the mom had made entry into Canada and at that point a media alert went out. It wasn't strictly an AMBER Alert, however.
The Chair: I'm impressed that you very quickly took many steps in the interests of the children. Roughly how long did that take you? It seems like you moved very fast.
Mr. Stooke: Within the day, the children had been apprehended by Alberta Child and Family Services. There were two contact points and this was through the great assistance of the Calgary non-profit helping agency who called us to say that they believed they had mom in their office asking for assistance. Mom became concerned about the length of time at this agency. She left but we were able to fairly quickly, within an hour or so, locate the family.
The Chair: And then get a judge's order quickly?
Mr. Stooke: Yes, things moved along fairly quickly. One of the things that helped was that there was a breach of the Immigration Act, so there was a clear Canadian offence; there was a provision in order to be able to arrest the mom, and that occurred quite quickly.
The unfortunate part was that the kids were put into care here in Alberta and they remained in care for approximately 90 days. Mom had returned to the U.S., and it took some time to investigate the allegations of abuse on both sides of the border. Once that was done, it goes through family court, the matter was resolved and the children were returned home to their dad.
The Chair: Thank you very much.
[Translation]
Senator Boisvenu: First I want to check with the witness if he can hear the interpretation.
[English]
Mr. Stooke: No, I cannot.
Senator Boisvenu: I will speak to you in English. As my English is very poor, I will do my best.
I'm new on this committee so I don't have much knowledge about this study, but as I have worked with policemen for almost 15 years in my region, I want to talk about AMBER Alerts. We know that presently we can receive an application that we download on cellphones. I just received that information one year ago.
Is there some publicity for the general population to invite them to download those kinds of applications on their cellphones so they can be aware of kidnapped children? Do you know if there is any publicity about that app?
Mr. Stooke: Senator, I believe that's the Missing Children's Society of Canada's initiative and they are headquartered here in Calgary. We are very familiar with that and it has been used at least once in the past, to our direct knowledge. We find it to be a very innovative approach. It's not exactly AMBER Alert, but at the same time, it's pushing information out very quickly right across the country to every person who would choose to download that app on their phone. We think it's a very good program and we do support Missing Children's Society of Canada in that initiative.
Senator Boisvenu: What I'm concerned about is that I asked 10 people if they knew about that kind of app, and one in ten knew of it. We know if there's a missing person, let's say a child, participation of the public is very important because they are eyes for policemen. They can easily help you if they just see that child. I think this is more commentary, but we should have more publicity for that app.
Secondly, there is reflection in Quebec to download the criteria to call an AMBER Alert. Presently there are four criteria —
[Translation]
The Chair: Mr. Boisvenu, I think you can continue in French now.
Senator Boisvenu: I was saying that, in Quebec, thought is being given to determining whether the AMBER alert criteria should be reduced. There are currently four criteria, and the question is whether there should instead be three. In comparison with the United States, there are many more AMBER alerts in the United States than in Canada, especially in Quebec. I think that there have been maybe four or five in Quebec in the past 10 years. Do you think this is a tool that is not used enough to try to find these parents and, as a result, the missing or abducted children?
[English]
Mr. Stooke: Thank you, senator. In each case they are a little bit different. In many of the Calgary cases, airline travel has been the primary mode that the family has moved in. It is more unusual when a vehicle is involved and where the AMBER Alert protocol would be more useful. Certainly through our provincial solicitors general, there is opportunity to have better education on AMBER Alerts and to look at those rules to see if they could be more helpful.
Senator Unger: Deputy Chief Stooke, you've answered a lot of questions that I had. Obviously, you know a lot about this situation. I'm just wondering if there's a way to get your ideas promoted across Canada. For example, does the Canadian Association of Chiefs of Police talk about this issue nationally? I think from what we've been hearing, it's an issue that's only going to increase in frequency.
Mr. Stooke: I certainly agree, senator, that this is an issue that will increase in frequency, for a number of reasons already being discussed by the committee. I think the Canadian Association of Chiefs of Police and the provincial associations are in a good position to help advance the issue and to educate police officers across the country on it.
For example, should we develop a national checklist in conjunction with the missing children's office out of Ottawa? The CACP and the provincial associations can assist in pushing that down through their membership and ensuring that all officers are trained and aware.
Senator Unger: Thank you.
I was a little shocked to hear that one of the mothers in these situations you outlined entered Canada with a photocopy of a passport. Having crossed borders many times, I can tell you I always had officers who were a lot more diligent. That really surprises me. Do you care to comment?
Mr. Stooke: Again, that was certainly a point of discussion in our office, and, of course, that would be back to CBSA to understand how that happened, although I do recognize that the woman involved was a Canadian citizen and was arriving in Canada. I'm not sure if that provides an explanation or not.
Senator Unger: Thank you very much.
Senator Hubley: Welcome to you, Deputy Chief Stooke, and thank you for your presentation. I do agree that you've answered many of our questions.
I'm just wondering about the third example you gave, the mother who arrived with a daughter from Spain, and the father had reported the daughter was missing. Can you share with me what steps he would have taken before he would have been able to finally come to the Calgary Police Service with his concern?
Mr. Stooke: I did read part of the police report that he filed in Spain, at least an English translation of it. He immediately took steps to notify the local authorities that his daughter was missing. From there, the steps would be similar to how a Canadian citizen would proceed. The police agencies checked with the airlines and saw that they had left the country. Of course, INTERPOL gets involved, the RCMP gets notified, and, in turn, the Calgary police was given notification.
Senator Hubley: I think you mentioned no charges were laid at that particular time against that mother in that case.
Mr. Stooke: There is still an ongoing investigation, but these things typically take a fair amount of time to sort out. So the situation for Canadian police is that we are not in possession of an enforceable custody order in Canada. There is no enforceable warrant of arrest in Canada for any offence, and therefore our citizen is really free to go about their day-to-day business.
On the other side, though, and internationally, those steps may well be under way, but it takes time to have them completed and then an international exchange before becoming enforceable in Canada.
Senator Hubley: So even though you do not control the mother, the children have been put in care at that particular time; is that correct?
Mr. Stooke: In this particular case, the child is not in care; the child is with mom. We would interview the child, ideally in the presence of child protection authorities, in order to establish whether or not that child is in need of protection.
In this case, following that interview, it was determined that it was safe to leave that child with the mother.
Senator Hubley: Generally, is there a protocol for children who are taken into care? Is there an advocate that carries forward with their concerns? Is there somebody protecting the child's rights at that time?
Mr. Stooke: I believe at the moment the Alberta child and family services would be that advocate for the child.
Sometimes a child gets in the middle of the dispute between the mother and the father. In Calgary, there is a non-profit agency called CLERC, which is the Children's Legal and Educational Resource Centre, and they specialize in providing legal support to children who may find themselves at odds with the law in one way or another. This is civil law, generally, and involves matters of child custody and so on, but there is a local agency here in Calgary that receives funding from private donors, from the Alberta Law Foundation and essentially provides legal aid type assistance representing the child.
[Translation]
Senator Boisvenu: You spoke in your brief about weaknesses in police authority. If changes were made to the Criminal Code or to the authority the police are given, what would your two priorities be, in terms of tools, that could facilitate your work?
[English]
Mr. Stooke: I think we have a couple of ideas. One is to change provincial legislation to define a child who is perhaps in the middle of an international abduction and to have statutes that define what is in the best interests of a child in order to examine whether or not the child is involved in an international abduction, this being evidence of the child needing care. That would give the provincial child and family authorities authority over that child. Similarly, should there be an order that could be applied for through the courts to ask mom to maintain residency in the jurisdiction so that the family doesn't continue to move from one jurisdiction to another?
The third thought is that we have at the moment access to airline information, which is under federal privacy legislation. Police may without a court order make a request of the airline to advise us whether or not a particular family or person is on a flight. The airline may reply to us; it's a discretionary power that they have. In all cases to date that we've been involved in, when it's explained that it's a situation of urgency or emergency, they have provided that information. Do we need to amend the regime to have a mandatory request or a written request that's sworn to make sure that that information comes through? That's a possibility, but operationally we actually haven't had a case that really calls for it.
[Translation]
Senator Boisvenu: About the last very important element you just raised, when you request information from airlines, does the fact that the airline has the final decision mean that obtaining the information is delayed with respect to an executory power that you may have, where the company would be forced to provide the information immediately? Would that shorten the time it would take to get the information?
[English]
Mr. Stooke: I think that's a question that the police community should be asking themselves, in conjunction with our legislators: Is the regime adequate? If a family gets onto an airplane and they're on their way to a destination through a transit country, there is some opportunity to meet them at their first stop. We need these sorts of powers to work fairly efficiently and quickly so that information can be moved and decisions can be made on an expedited basis.
The Chair: Mr. Stooke, we have found your presentation very interesting. It will certainly enrich our study. Once again, we thank you for making yourself available on such short notice.
Senators, I'm pleased to welcome by video conference from the Office of the Representative for Children and Youth, British Columbia, Ms. Mary Turpel-Lafond, Representative for Children and Youth. She is certainly not a newcomer to our committee and we always appreciate her being available to speak about the interests of children.
We also have, from the Office of the Provincial Advocate for Children and Youth for Ontario, Mr. Irwin Elmanand Ms. Laura Arndt. We're happy to have both of you here.
Ms. Turpel-Lafond, please proceed with your presentation.
Mary Ellen Turpel-Lafond, Representative for Children and Youth, Office of the Representative for Children and Youth, British Columbia: Thank you, madam chair, for the invitation. It's an honour to have an opportunity to share some concerns about this important issue that the committee is studying. I'm delighted that my colleague, the child advocate for Ontario, is joining me today. I have submitted a paper to the committee outlining at a higher level a range of concerns, and I wanted to speak briefly to them by way of introduction.
Of course, in my role I am an independent Officer of the Legislative Assembly of British Columbia. My job is to oversee the child welfare system in British Columbia, to investigate injuries and deaths of children, and to provide advocacy services to those around a certain class of designated services in the province of B.C.
I give you that introduction just to say that my mandate as the only child advocate's office in B.C. does not necessarily include the class of cases that would be considered abductions arising pursuant to the Hague Convention and that the role of advocacy-coordinating offices in British Columbia on these issues is unclear. This will be significant in my submission today because I feel that we need to take steps to coordinate and strengthen the role of authorities and clear leads in terms of providing advocacy support for children and families, in particular to prevent abductions, to prevent crimes against children, and to promote safety and a safer administration of the Hague Convention in Canada.
I say that by way of introduction. It's not that I'm not aware of cases, as in my seven years as the child advocate I have been brought into cases where there have been controversies in child welfare dimensions; but it is frequently unclear around the lead responsibility and the response. I say that in terms of the unique situations in our province of British Columbia. Not unlike other places in Canada, we're a diverse, multi-ethnic and multicultural province. We have a highly globalized population. The citizens who live in British Columbia span the entire range, whether landed immigrants, international citizens or Canadian citizens. We have many examples of unaccompanied minors that come into British Columbia for a period of time. There are many issues in this province around the importance of the convention, its application, and the need to have a seamless and clear process to first, prevent abductions, and second, respond swiftly and appropriately.
I would just identify a few areas of concern further to the brief that I submitted. I'm concerned that Canada needs to work more diligently at the federal level to implement the treaty within our own boundaries so that we have clear accountabilities and a clear mechanism to oversee and coordinate policy and practice right down to the public information component, and to ensure that there's appropriate training with our judiciary and state officials, police officials and others, including clearer monitoring of international child welfare situations around the world.
When we deal with applications where there's been a possible abduction and a determination has to be made about a child's best interests or vulnerability, frequently there are issues around the strength or functioning of the child welfare system in another country. In some instances, there is no functioning child welfare system and there may be allegations of abuse or maltreatment. There is a need to have very good information and strong, impartial information provided around global context of this convention's implementation, in particular for children who may have been removed from Canada.
I also want to draw attention to the fact that there is great benefit for Canada in looking at the convention's implementation more strongly around the UN Convention on the Rights of the Child. I've gone to some lengths in the submission I've made to point out the fact that the UN Convention on the Rights of the Child takes a stronger approach to the best interests of the child, as well as the important requirement to hear the child's views and how we receive those. I stop there to note that even in Canada, even in one province, British Columbia, our laws have differing practices around how to obtain and receive the views of the child. In British Columbia, the views of the child are very important in some statutes. For instance, in our Adoption Act in B.C., if a child is over 12, they are considered to be able to give their own views. If they're between the ages of 7 and 12, a report will be prepared on their views. If they're under the age of 7, it's not clear.
When it comes to other aspects of family law and child welfare law, there are differences. Sometimes there are inconsistencies in provincial family jurisdiction and inconsistencies in federal law.
When we look at implementing this convention and making sure we hear from children and comply with the UN Convention on the Rights of the Child, it would be helpful to have a stronger and clearer national coordinating approach and clear standards around how we receive and pay respect to the importance of obtaining and considering the views of the child, for instance. There's much room for improvement and strengthening here and there is too infrequently an ad hoc approach to these issues.
Some other concerns that I would point to are around the age of majority. Some of our statutes — and the Hague Convention itself — appear to define a child as a person up to 16 years of age. The UN Convention on the Rights of the Child defines it as a person up to 18 years of age. In our province and the child welfare legislation, the age of majority is 19. In some instances, we provide certain supports to young adults even beyond the age of 19. Around the gap that clearly exists on its face between the 16-year-old who at the age of 16 would no longer be protected by this convention, through to the 18-year-old who would be protected by the other Convention on the Rights of the Child, there's a need to clarify some of those gaps. I bring that to the committee's attention and welcome some improvement there.
I've spoken a bit about central authorities in Canada, how they must cooperate in a timely way, and I would say while there are provincial leads, proper independent and effective oversight of this at the national level is needed. It needs to be assigned to an entity, whether it's a national children's commission, a human rights entity or other body. There is a need for regular, focused efforts to see that this convention and its provisions are strengthened and realized for all children who find themselves living and being raised within Canada and subject to parental abductions.
The concern that I have with respect to the issues of the Hague Convention is that there are differences in the child welfare standards even within our own country around ages. The determination of the best interests has different provisions. We've recently changed our family law in British Columbia and we've adopted more of a UN Convention on the Rights of the Child approach, where we have parental responsibilities and children's rights.
Some of our approaches nationally to these issues could well align with this. We don't have a common framework for dealing with the best interests of a child. As I mentioned, children's participation is extremely important.
I would also say that many of these abduction cases frequently involve a black-and-white scenario, namely, the child is abducted or is removed and there are allegations of abuse and wrongdoing frequently, allegations of criminality that the child may have been exposed to. The convention is not very clear around the best interests of the child and the child's right to be connected to all members of their family.
The UN Convention on the Rights of the Child, in Article 9, makes it explicit that children have a right to a family life and they are not to be separated from their parents against their will unless it's determined to be in their best interests. Ongoing attachment to grandparents and family is very significant and requires a more nuanced consideration of issues, and may require orders to allow a child to continue to have access to a globalized family.
Again, I make note of this to say that in many instances our national approach to this issue needs to be more informed by the convention and by the reality of the cases that we see.
I will end my introductory remarks by saying that I think the issues particularly around children being removed and reported instances of abductions are probably under-reported. There are consistent problems around delays in reporting and delays in action, while the number of cases has increased over recent years. Frequently, because of the vulnerability of the other birth parent, there are often reasons why cases are not reported swiftly. The child is returned from a visit with one parent, but there has been a deep context of domestic violence, for instance. There's no likelihood that the child will be returned, but there's a delay in reporting. As a result, the children's best interests don't get dealt with.
I make mention of this because, in addition to the enforcement of these provisions, the need to have a preventative strategy to protect children living in families where there may be abuse, particularly domestic violence and the threat of removal of the child is present, or a refusal to return the child will be present unless there are certain conditions that the other parent is prepared to put up with that are tantamount to ongoing control and violence.
We can't divorce these issues completely from important issues around violence against women in relationships, and in British Columbia we've seen numerous examples of this where women under-report because of their vulnerability. By the time the system becomes involved, it may not be timely and we haven't effectively prevented the situations where we could be more active had we a clear strategy and clearer national standards in this area.
I'll pause there and after my colleague presents I will take any questions you might have. Thank you.
The Chair: Thank you very much for your presentation.
Now we'll go to the Office of the Provincial Advocate for Children and Youth for Ontario.
Irwin Elman, Provincial Advocate, Office of the Provincial Advocate for Children and Youth (Ontario): Thank you, senators, and thank you to the clerk and Ms. Turpel-Lafond for telling me about this committee and inviting me to speak. It won't be surprising to senators that I agree with everything Mary Ellen has said and her strong advocacy on this issue.
I'm here with Laura Arndt, Director of Strategic Development from my office, who has an interest in the issues that we're discussing today and who, when I found out about this opportunity, said to me that we need to spend the weekend writing the submission that you have in front of you.
I think it's important to know that my office has a piece of legislation that tells us to partner with children and youth to bring their issues forward. The key word in our legislation is "partner." You can find it everywhere throughout our act. Whether it's to be an exemplar in child and youth participation in that instruction or the strong direction not to advocate without permission of the child, our act tells us to work with children, to honour the UNCRC principle of children being heard and having the right to participate.
I tell you that because everything I say from here on in is probably influenced by our legislation and our way of thinking around that. I invite you to take the opportunity to put on that kind of lens, to think about the issues in front of you from that point of view.
I would suggest that the UN Convention on the Rights of the Child is a really helpful tool through which to look at your deliberations. I know it's not the only tool, but it is a tool, I think, that would be instructive to you.
The first thing is that that convention, and using it, will allow you to view children as persons rather than property, as people rather than objects. Oftentimes in the discussions that you have before you and in the decisions that are made about children, we think we're talking about systems. We think we're talking about processes. We think we're talking about conventions. But I submit that you are actually talking about children. It's important to remember that, and that those children are people.
Thinking about that, using the convention and using the right to participate, we know that even in these really difficult situations, children have the right to participate in what happens to them whether, one, they were abducted or not and, two, where they want to be and, three, how they want to return home if they want to return home.
In all of the many different situations in the cases that we're talking about, when children have the right to participate, they move from becoming an object to becoming a subject in the world. I would argue, as some theorists do, that they move from being dehumanized to being human. When children become people and persons, they become citizens, as we know they are. They carry their rights. They become fully whole, and they begin to heal.
When children have the right to participate, even in the decisions that you're discussing, you're helping them become whole. That would be my first argument.
The second is that, as the advocate in Ontario, I often notice the gap between the conventions, the policies, the laws, the systems, the frameworks that are in place, and what happens on the ground. It's a huge gap, a chasm sometimes. When you use the convention and the right to be heard, you begin to lessen that gap because you force people, systems, helpers, police, advocates to come around the child and try to figure out what's best, and then you use the systems and policies and frameworks that are in place to try to do what you and the child and other stakeholders, I suppose, think is in the best interests of that child. It helps to lessen the gap. It helps to create the intent that legislators like you have when you create reports or policies or pieces of legislation.
I think also, when you look at the rights of the child — and, in my estimation, the most important right is the right to participate, the fundamental right — then it is incumbent upon you to set up goals and measures and standards across the country because we, as a country, have adopted the UNCRC. It's incumbent upon you to see how we're doing. Even in this issue around abducted children, putting children at the centre makes it incumbent to measure how we're doing this. This is why, in our submission, we suggest that this topic of abducted children and how Canada is doing should be part of the review by the UN on the Convention on the Rights of the Child and the report that Canada gives to the UN and how we are doing with regard to this issue.
Finally, I want to say that it's not lost on me that the local is global. In all of our provinces, but particularly in Ontario, the local is global. What I mean by that is that when an issue like child abduction rises in Ontario, it uncovers the fabric of the province. It uncovers the fact that we are such a diverse province, so connected to the world that this adds a new piece to the issue of child abduction, our awareness of that, our ability to be connected to the world. It's a fine balance between how other cultures look at parenting and at the issue of child rights. It's a balance between the voices of the parents involved, the rights of the child and what the child wants and the pieces of legislation, as Ms. Turpel-Lafond has talked about for B.C. In Ontario, it's the same — the pieces of legislation that intersect the jurisdictions involved in any case.
For me, what's really interesting is that all countries, save one, I think — the United States — have ratified the UN Convention on the Rights of the Child, which means that you have a basis for which countries can begin to talk about the very issues that you're discussing. To me, that's important, both domestically and internationally.
We have some specifics that we can speak to if you have questions in the discussion period, but that's where I wanted to leave it.
I think I have one or two more minutes. I think of a case I was involved with just a few months ago. There was a young man in Jamaica. He is 12 years old. He was born in Canada. He is a Canadian citizen. His mother was Jamaican, and his father was Canadian-born. The family splits. The mother takes the son and goes back to Jamaica with the father's consent, and they're living there. I get a call from the Jamaican child advocate saying, "We have one of your citizens, this 12-year-old boy, who wants to return to your country, but we can't get him here."
The problem the boy had was that his father was a Canadian citizen, had his passport and wouldn't give it to the young man. The system didn't seem to have a route for the young man to apply for his own passport. The mother in Jamaica seemingly couldn't have the embassy or the Canadian government help her to apply for this young boy's passport so that he could come to live with a family friend. I think the father didn't want the son back. So it was kind of the opposite of a child abduction; it was almost an international child abandonment situation.
Of course, I had to meet and talk to the young man, the 12-year-old. He wanted to come back to Canada. He, frankly, thought that he could get a better education in Canada as a 12-year-old and wanted to come back and live in Ontario and go to school. We had to intervene. Even though, as Ms. Turpel-Lafond said, it was outside of our mandate, we had to intervene with the Canadian government. There is no other route that we could find, either through the channels of the federal government or through any other advocacy body that could support this young man. It spoke to me of the importance of the voice of that 12-year-old. If we had recognition of it and recognition of the importance of it, that 12-year-old would have had a route to come back to his own country much more easily than he did. I want to leave you with that.
Laura Arndt, Director of Strategic Development, Office of the Provincial Advocate for Children and Youth (Ontario): Just to add to what the advocate has already said, as we talk about the nature of abduction, I just want to clarify the points around "local is global."
The reality is that we, as advocates, often work in the business of child welfare and service systems where children are removed from families and begin to exist and create lives in a different way. In exploring this issue, it was really difficult because it's not really about immigration. It's not really about simple family law. It's not simply about the convention, be it the UNCRC or the Hague Convention. It really becomes a bigger dialogue of local is global. It's the same as when a child goes into care. They will often run home when a crisis happens because no matter how bad that home was, it's still home. The reality is that in these situations, often what we're seeing in the examples that come forward is that parents are doing the same thing.
In a failure of their ability to manage the realities that exist, they run home; then family law becomes global. The local issue of going home is something we can all relate to. The reality is that when that local becomes global in the context of family law, we run into a lot of difficulties.
As the advocate has also said when we've talked about this, you have this reality that you have a Hague Convention that has 92 partner states, and you have a UNCRC with all but two countries that have ratified it. When we speak about our children, I think it becomes one of the easiest bridges to begin a dialogue. When you can start a dialogue on a convention that somebody has already signed, where the nature of enforcement, the nature of legal interventions become focused on the best interests of a child, you begin to build some of the bridges. I think that's where the vulnerable children's unit, with consular services, really has the opportunity to strengthen some of the work its doing. It's really anchoring the strength of the provisions of the UNCRC as a means of navigating in.
What that also means nationally for Canada is that global is local in the context of — as we sit here as two advocates from two of the highest points of destination for immigration in this country, we have the ability to do outreach within the newcomer and settlement communities that have very strong ties back to home. Strengthening some of the partnerships and the collaboration efforts through those communities here in Canada allows this to become a family issue, and it allows us to navigate some of the complexities of policy and diplomacy through the various communities in which it is evolving. We need to strengthen the partnerships we have with these communities, understanding that there are cultural and linguistic differences, and practices and value systems that differ.
But the reality is, in being able to navigate that, we also have the ability to strengthen some of the very policy issues playing out in Canada with regard to how we work with child welfare and how children come into the systems. We have been very good at a Eurocentric framework but not good at expanding that framework to better understand the complexities of an emerging world that has moved from local to global.
The other thing the advocate focuses on significantly in this presentation is that there is an ability for us to strengthen the role of advocacy. Most provinces in this country have a formal body in place. While they have provincial mandates, there are mechanisms by which those provincial mandates, as Mary Ellen has already talked about — we can become increasingly involved, but we don't have the mandate to step into this area, because our legislation is very specific in the way we can do our work.
As one possibility in moving forward, we hope there's an ability through the Senate, federal government and provincial relationships to begin to understand that these are a very unique — yes, small right now — group of children, but these are children who are in need of advocacy's resources and supports. As part of this dialogue, we hope the opportunity to bring provincial advocacy bodies into the network of supports that are already partnering together.
The uniqueness of being an independent body not attached to federal and provincial policy issues — because, as we've reviewed the cases and things involved, the families are often as frustrated with the bureaucracy as they are with navigating the realities of trying to bring their children home. But it becomes very important to have an independent body in place that can work within this process to ensure that the questions being asked are focused specifically to the needs of children and are being considered.
It becomes the first step, as Mary Ellen has already spoken about, where we go with regard to the need for a national children's commissioner in this country. As the UNCRC has already said, we need to start with some of the basic infrastructures that need to be put in place to show that the issues we are dealing with require the attention of a national child commissioner.
A child commissioner could then work provincially and territorially to deal with a number of issues that have come through policing, courts, family law associations and the different bodies in place. It would also allow the provinces and advocacy bodies to take a more active role around CRC activities.
As you know, Canada currently reports periodically every five years. One of the areas not reported is this area. It's a growing issue, as the numbers show. It's relatively small. As Mary Ellen has said, the numbers are also growing and we don't know about unreported numbers.
The hope would be that by working with the provincial advocates through a network of supports and resources, we can get a better way of providing alternate reports to the UNCRC on some of these issues that strengthen and enhance what the federal and provincial bodies are already reporting on.
But we think there's a role that advocates can play in supporting the work that needs to be done in this area. The reality is not only in bringing children home but also ensuring that, as these matters go forward, the best interests of the child are served, regardless of where the child ends up. That should be central and foremost in the decision making going forward.
The Chair: This has been exceptionally interesting and very informative. Thank you very much.
Before going to questions, I'm curious as to what all three of you have said. There is the Vulnerable Children's Consular. Is either office faced with the issue of forced marriages for young people?
Ms. Turpel-Lafond: For British Columbia, I can say we do have the whole spectrum of issues around forced marriages and children sometimes being pledged in marriage to someone in another country. That can be with or without parental consent, so there are delicate child welfare issues that are arising.
The most common issues we face — the grey zone — is where there are no custody orders in place. There is a removal of a child, or a threatened removal of a child, technically generally for a visit with family in the country of origin, or a globalized family. But hanging over that is the threat that the children will be taken and never returned.
Some of the requirements in British Columbia — for instance, if the RCMP are going to enforce a custody order and preclude someone from leaving the country with a child, frequently those custody orders need to, first, be in place, and, second, have very detailed provisions allowing criminal enforcement, if you like. We have the issue in our airport — YVR in Vancouver, our biggest airport — in that we don't have a child protection unit there ready to go.
We have a lot of missteps in terms of anticipating and responding to what is a known issue, which is the threatened and actual removal of children from their family context in Canada to an environment where they may be staying or just visiting, but there's a good likelihood that they'll never return.
Whatever the purpose is, whether it's for a marriage and whether there are religious or cultural factors that need to be considered from the lens of best interests, we have a grey zone where we're really not functionally working effectively to protect and support children.
Ms. Arndt: We have not been involved with forced marriage. We often come into contact with children who have come into the country unaccompanied and are now in the country without status and who at this point are involved in a lot of the underground resources, services, sex trade and homelessness issues that are playing out for much of what we're hearing in the media. But because they're children, they stay underground, because their fear is that to come out of the shelters and the systems they're in is to end up being placed back on a plane and being asked to leave the country.
The one thing these young people do come to Canada knowing is that it's very difficult for them to navigate citizenship or any kind of residency once they arrive, so many of them stay underground. We are seeing an increasing number of those youth coming in and surviving in the shelter system and in the homelessness sector. Those numbers are increasing in Ontario on a yearly basis.
Senator Andreychuk: Thank you for the presentations. They have been very helpful, and they point out the complexity of this issue.
When you talk about laws in Canada, we have a federal system. We often talk about the administration of justice as provincial, criminal law is federal and then you have child welfare laws, which are all provincial. We have all these layers, and then we have the departments of health getting involved, et cetera. Often I'm overwhelmed by the number of agencies and authorities involved.
Now you take it onto an international stage with countries that aren't as responsive as the governments we're dealing with here. Some countries don't have the capability to deal with them; they're still developing. Many countries are in crisis. We receive a lot of refugees and immigrants from war-torn areas. Some go back; some don't.
I stand back and think that I put forward reviewing the Hague study was just what you're pointing out; namely, that we're now not local but global. If you're going to talk global, you'll have to have in place locally.
It is from my understanding that so many parents are very optimistic when they get together in a relationship and then have a child. When things go wrong, and if they're in a relationship with someone from outside of Canada, they find that their child is missing by any one of the factors or facts that you have given, and then they want a simple answer. It's a simple fact that the child leaves, and they simply want the child back. Then, of course, we have this system that says it's not that easy.
So I was pleased to see that the federal government responded and is now putting out more guidelines for parents, when you go to apply for a passport, to know what you're getting into. This is a relatively new move, so we're starting to address this issue.
I would be interested in hearing more about how we can educate the parents to have realistic expectations when they get themselves into a global situation. That would be one thing. The other is that I'm not sure who used the phrase "oversight by the federal government." Having worked in family court — we share something with the Saskatchewan provincial court, Ms. Turpel-Lafond — I'm very conscious of provincial jurisdiction and of the fact that the provinces maintain their roles. If the federal government said it would start playing an oversight role, I think we would get into this federal-provincial. Rather, the government has cautiously moved into this role of facilitation. I'm wondering whether this would be the right committee to be advocating for a broadened mandate for provincial bodies such as yours. We might be stepping on a territory that we have cautiously suggested, from time to time, that they look at it when we see a problem, but we have not made a recommendation. That's a rambling opening. I don't know if any of you are willing to speak to it.
This Hague bit has been a problem because we started out the convention to have countries be responsive to understanding this global world so that if a custody order is made in Canada, we want it respected somewhere else and vice versa. Now, is it the right time to introduce the rights of the child in the complexity that we're working with in Canada when we haven't even gotten a buy into The Hague convention from the very countries we wish has bought into it, with all the cultural differences, et cetera?
I'm suggesting that we use the Convention on the Rights of the Child to point out the responsibilities, and the countries that have not signed on to The Hague convention should reconsider their position and sign on to it. Then we can start building. We had a judge who forcefully put out that if we can get judges and lawyers to start building some symmetry and definitions — like rights of the child — and have some working documents, that you move the agenda forward. So we have this step first where we have to get them involved as countries and then try to work on best practices that have similarities.
That's a long comment to say where should we start as a committee, understanding how globally complex this issue is? I'm wondering if my suggestion is to try and educate parents, perhaps earlier and in a broader way, and it could be a role of the federal government to identify how difficult this is and parents should be forewarned. Does anyone want to respond?
Ms. Turpel-Lafond: I'm happy to step in and thank Senator Andreychuk for the comments. I know she has a great deal of expertise on these issues, and this is why it's welcome that the Senate committee is examining the issue.
Just to clarify around the issue of oversight, the importance from my perspective is that there be a clear federal lead and body that has a role to promote the Hague Convention in compliance with the convention inside our own boundaries. I think there are some blind spots, even within Canada. Even though I always think we're doing better than other places, I look at the delays in British Columbia between when an incident arises and a remedy, whether it's an AMBER Alert or an actual enforcement order. As committee members will have heard, a lot of the work on this convention is mediation, getting another country's child welfare or family justice system to negotiate through their consular offices for the return of the child before it ends up being a full-blown criminal matter.
Inside Canada, we don't have a sufficient lead. I know we have some good people working, but even to promote clear practices, as judges, lawyers, police and others will say, it's very unclear what is a visit of a child to another country and when does it become an abduction? You need to have some expertise to look at that, and a body understanding children in a globalized world.
This is why it's so valuable for us to consider having a national children's commission, commissioner or office that can promote these issues, look at them and look at our compliance in Canada. We can set out some good practices and engage with other nation states around those practices.
I'm not saying we have bragging rights as the most globalized country, but we are highly globalized. British Columbia is highly globalized in terms of where families go, yet we are skating on thin ice in terms of not having strong processes. We can send out an alert, but it's meaningless in the other country. This is really a challenge. We have to improve things within our own borders. We don't want to be trouncing or stepping on provincial authority. But I think the problem is we actually have provincial administration of justice people saying, "Please help us make this work more effectively, make it so that it can be more responsive and make it so that we don't have to have such an expensive process."
These civil family processes are extremely expensive. We're dealing with people having custody orders that are very explicit. Yes, we need to educate parents about what they need to seek, but their ability to access family justice remedies may be very impacted by their own status. As I say, the issues around violence and so forth with the family really cloud and complicate this. These are issues we would be dealing with in Canada.
Frequently you have abduction when there is a domestic violence incident in Canada. You have someone who has come to the attention of local authorities, there has been violence in the family, and then the individual leaves with a child on a visit but there's no prospect of a return.
In Canada, we can think more collaboratively. We've done some very good work, but it strikes me that the work is a few people in a few places, and a really coordinated effort is needed here to make this a serious issue.
I would point to one parallel area and that is, for instance, adoption. On issues of international adoption, it's very similar to this. Occasionally we'll have countries that completely shut down international adoptions. We'll have large numbers of families who are at the end stage of the adoption process, but for whatever political reason a country may shut it down, even though the UN Convention on the Rights of the Child allows for an adoption. It's a similar dynamic that happens and we're never clear; is there a strong federal lead on this? It becomes complicated.
My respectful suggestion is we can always take moves to strengthen it, entice other countries to adhere and comply, but a strong Canadian presence, whether through a children's commission, other than relying on consular and informal assignments, is needed to make this convention a reality in Canada.
Mr. Elman: Senator Andreychuk, it's good to see you again, and still championing the rights of children. Thank you. I just wanted to say that. I haven't seen you in a long time.
Your comments made me think of a story that a young person told me. It stuck with me. It colours the way I see things, and I want to give it to you. If it helps you, great; if not, it's two minutes of your time.
A young woman was part of a group of youth who were helping us at an inquest. Our office gets standing at inquests in the deaths of children in Ontario, and we bring young people together. They inform us and we try to bring the child's voice to the inquest process.
This was an inquest about a 14-year-old girl who had been moving from foster home to foster home. She ended up in one foster home she wanted to stay at and was asked to move. The first night she went to the new foster home after many moves, she didn't want to be there. She got up in the middle of the night, took a pillow and murdered another 2-year-old foster child. The inquest was about the 2-year-old foster child, but it was not surprising that a lot of the discussion at the inquest was around what we could have done to prevent the 14-year-old from doing that.
I was in the group of young people, and they were talking about the issues that came up at the inquest and about moving from home to home, which happens in Ontario frequently with kids in care.
This girl, who was part of the inquest group, was now about 20-years-old and living on her own. She said, "When I was in care, we moved from home to home to home. When we moved, we always had to put our stuff in garbage bags. You're going to this home, putting your stuff in a worker's car and moving." And she said, "As youths, we thought it was so demeaning to move that way, so some of us in the agency got together and raised money with the workers and bought luggage so no kid in our agency would have to move from home to home with a garbage bag."
I thought the story was over because of youth empowerment, or whatever, and I said, "That's great." She said, "That's not the end of the story." Sorry for you, too. She said, "I thought that was the solution." I would never say she said we shouldn't have done that. She said, "I realized that the luggage didn't solve the problem. I realized that if I was in a home where I felt really good and secure and I felt I had control over the move when I had to move to the next home, some sense of control — I know maybe I had to move, I was causing too many problems — but if I had sensed I was part of this decision and I was moving from one place that cared for me and I was moving to another that cared for me, I wouldn't have cared about the garbage bags. I realized that the garbage bags were an institutional solution to a human problem, and what I needed was a human solution to a human problem." She's pointing at me, and she said, "You guys aren't very good at that. You don't know how to do that." I know why she said that, because they're so darn tough, and I think that's the business you're involved in. Most of the situations you're involved in require human solutions, yet you're an institution trying to figure out a convention that's another institution.
Senator, you made me think when you said there are all these bodies involved in trying to figure out what's the right thing to do, and really, you need to sit with that child and figure out the right thing to do here with them, and then the people involved need to get it done. That's your job, to figure out how to make that happen, which, I would point out, is a lot more difficult than figuring out any piece of legislation, but it's the job. The young people pointed out that that's the solution.
When you think about the number of cases that we have on the table, we can do this. If there are 100 or 200 cases that we're talking about, as a country, we can figure out how to put the child at the centre, figure out what needs to be done and get it done. We have enough institutions to do that. It's just how we get to that human solution, and it has always stuck with me. I think it's true in any piece of my mandate and certainly here. She called it "institutional solutions," and, Laurie, you called it "structural feelings," creating structures with feelings that can get to that level, and I think that's really what you have to do.
Senator Hubley: Thank you very much for your presentations. They were very interesting.
Mr. Elman, I'm going to go back. That's still spinning in my head, a very passionate plea for the children, and I certainly appreciate that.
You shared with us the story of John, the 12-year-old whose mother separated, returned to her home of Jamaica and took John. A year later, she wanted John to come to Canada and John wanted to but the father didn't for whatever reason. I'm wondering what kind of dilemmas or conflicts you get into where the rights of the child and the responsibilities of a parent collide. Where do one stop and the other begin? It was something that I was thinking about while you were sharing that with us. I'm wondering if you can comment on that.
Mr. Elman: I have my own thoughts. I'm sure Ms. Turpel-Lafond and Ms. Arndt do as well, so I hope they contribute, too.
I've been posed this as an advocate many times in all sorts of contexts. One of the things I think about is when a child has the right to participate, that doesn't necessarily mean they get the right to make the decision. They get the right to be heard. As my wife pointed out, whenever I talk about being heard, not the kind of hearing you do when I tell you how my day was and you say yes, I heard you honey, and I repeat the last few sentences you just said, but real engaged listening. When you talk about that kind of right to be heard and to participate, you're halfway home if you get there. That's the first thing I'd say I'm talking about in terms of the right to be heard, the right to be acknowledged, the right to have your opinion considered. We know what that's like as people.
Even when children become older, 16 or 17, and they want to make decisions for themselves but they're still under their parents' roof, it's almost always, especially with the young people in my mandate, better in my opinion to allow that child to make the decision as long as you're there to pick them up if they make a decision that was a mistake. Consent, the right to participate, is not a one-time deal. It should be a process, and it's built in a relationship of trust with somebody that they care about, whether in a system it's their social worker, foster parent, group home worker, or their parent if they're not in any system. It's the trust between the parent and the child and the relationship that is forged by listening, by allowing for the right to participate that will ensure that child makes both a healthy decision and grows up strong and productive, if you want to think about it that way, as a citizen in our country.
I'm thinking about those two things when I'm thinking about that.
Ms. Turpel-Lafond: Regarding the importance of the respect for the views of a child from Article 12 from the UN convention, we've ratified that convention, so our Canadian system has to emulate and reflect that.
How you hear from the child and the child's views means a lot. I completely confirm and share the perspective that Mr. Elman has given.
The challenge we have in the Hague class of cases is how you get the child's views and get them before a decision maker. At what age do you hear directly from the child? Only if they're over 12?
Again, I refer to B.C. In B.C., the Adoption Act says if you're 12 and over, you can directly speak; if you're 7 to 12, someone gets your views; if you're under 7, it's unclear. The Youth Criminal Justice Act says something different. The community family safety act says something different. We don't have a clear alignment in Canada. We have the ratification of the convention, but we're not sure how to have best practices to receive and place importance on the child's views.
I fully agree with Mr. Elman. Just because you meaningfully engage a child about their views doesn't mean their views determine the matter, but it reflects the respect we have in Canada for the UN Convention on the Rights of the Child and the respect we have in Canada that children are not pieces of baggage owned by their parents or anyone. They are actually independent rights owners who we need to hear from. This is very important because frequently in these cases the child will have a view. Unless you sometimes have these parental alienation cases overlaid with all kinds of family conflict, the child's views, when freely given without the influence, if you like, of that hostility that can be there, are quite a significant factor for the state to consider and to keep the child at the focus. It isn't just returning a piece of property to someone. It's about human development and a child's opportunity to live and grow and a set of Canadian values, like the ratification of the convention. Codifying how we will receive that and making sure judges and others do that is crucial, as well as making sure Canadian consular officials reflect that. I think we've done a good job in many cases, but I think we haven't done a good job in all cases.
[Translation]
Senator Boisvenu: First, I would like to thank you for being here. This information enhances my knowledge because I am not very familiar with this committee's work. I would like to thank Senator Andreychuk, because she got to the heart of the matter that, to me, seems central to this issue and to its complexity.
We know that the protection of children, family law and police work are all provincial responsibilities. I am trying to determine what we could do instead of creating new structures. You are suggesting the creation of a new structure, a sort of ombudsman or commissioner for children. I can also see that it is very random from province to province. The provinces have the most responsibility. On one hand, they are not homogenous. On the other, the cultural mix created in recent years by major waves of immigration to Canada means that the problem will not be on the decline. It is now part of the Canadian reality and will continue to be.
We need to find possible solutions to ensure that the results within this complex system are effective. The challenge ahead within this significantly complex situation is to obtain effective results while making the child the primary concern. The child must be at the heart of our concerns.
With the tools we have, how can we reduce the complexity of the overall work of stakeholders within the current structures? Is my question clear, Ms. Turpel?
[English]
Ms. Turpel-Lafond: I agree with fully with the context of your question, which is that these issues are not declining; they're increasing — globalized families, children either being born in Canada or coming to Canada with a wide range of parenting relationships and familial relationships with a global context. The trend is upward. Whether we have a sufficiently stable framework in Canada to accommodate these issues is a question for Canadians. The Hague Convention is part of that, but I think the issues you've identified are good ones.
Is this a patchwork? Yes, it is a patchwork. Even the central authorities identified under the convention, which I checked last night, are out of date. When I looked at them, I saw that we don't have a single website where you can go to get all the information. It's not easy to navigate.
There are basic things that need to be done to make this easier. Senator Andreychuk talked about information for families at point of entry or ongoing social education around what we do in Canada. First, we have to be clear what it is we do in every province and territory.
The Chair: Did you want to add something?
Ms. Arndt: I'm not sure that our response will fully give you what you're looking for. Part of the reason we've been talking about added layers in the role of a national commissioner in this dialogue is that there is a need for a centralizing body to link and coordinate the educational components and resources that can play out provincially, while working in partnership federally.
Ms. Turpel-Lafond: There's much we can do. We shouldn't rest on our laurels. I'm not saying we have to create a big, independent office immediately. We should be working toward that, but we need good information. We need a single website that is clear about the tools and the leads and is up to date. We need collaborative standards in Canada on the enforcement of child support, on the enforcement of orders, the use of AMBER Alerts and the involvement of civil authorities, police and others. We need to ensure that people can respond quickly when a child had been removed. A child is in peril when they have been suddenly and abruptly removed, or where there's a decision taking them away from their family. That requires a prompt response.
In some instances we get that but in some instances we don't. Sometimes when it's a cross-border issue with our close-by neighbour, the United States, it is quicker than it is with, say, Saudi Arabia. It depends what the other country is and how close we are to doing it. When things are far away from us geographically and sometimes ethno-culturally, it becomes difficult and takes far too long. My suggestion is that this committee make some practical, sensible recommendations around having in place a good national process working toward clarity so that there can be prompt and effective enforcement of the convention in Canada and protection of the family relationships and the child's interests.
We have done well, as I said earlier, mostly because we've had some good leadership in a few places by people who understand these cases. However, what I tend to see in a high-profile case that may come up in a particular part of the country is elected officials, police officials and others being extremely frustrated about the fact that the machinery doesn't work and the consular officials are called into play. At that point, it's a crisis, when it should be a smooth system.
At the point of crisis, it isn't working well. In between the crises, we need a stable system and uniform approaches. We need to promote those through our international bodies that we are part of. First and foremost, within our own boundaries and borders, we should have clearer standards, rules and procedures. We should be straightforward with our citizens and visitors about what the standards are and what the expected responses will be.
The Chair: I thank all three of you very much for your presentations. This has been informative. Certainly, we'll be thinking about what you've said.
I would like to commence our third panel. I appreciate your patience. I would like to welcome, from the Ministry of Justice of British Columbia, Penelope Lipsack, Barrister and Solicitor for the Legal Services Branch; and from the Ministry of the Attorney General of Ontario, Shane Foulds, Legal Counsel. They're both joining us by video conference. Mr. Foulds will be first.
Shane Foulds, Legal Counsel, Ministry of the Attorney General of Ontario: Thank you, and good evening, Madam Chair and honourable members of the committee. I'd like to start by thanking you, honourable senators, for giving us the opportunity to contribute to this important study on international child abduction.
I am lead counsel for the Central Authority for the Province of Ontario. Our office is charged with administering the Hague Convention on the Civil Aspects of International Child Abduction. The stated purpose of the convention is 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.
A mandatory requirement of the Hague Convention is that each contracting state establish a central authority office to contact regarding child abduction matters under the convention.
Because of the unique constitutional structure of Canada, while the federal government negotiated the convention, the administration of family law is under the jurisdiction of the provinces. Thus, in Canada we have 10 provincial central authorities, as well as 3 territorial central authorities.
In Ontario, the entire text of the Hague Convention was incorporated into the Children's Law Reform Act by act of the provincial legislature. In Ontario, the central authority is the Ministry of the Attorney General and is housed alongside the provincial maintenance and enforcement program.
The Ministry of the Attorney General represents the legal interests of the Central Authority and provides ongoing communication support, including responding to media inquiries, as well as dealing with the actual cases.
The Ontario Central Authority handles both outgoing and incoming applications. Outgoing applications are sent from Ontario to another contracting state for a child to be returned to Ontario, and incoming applications are sent to Ontario from another contracting state for a child to be returned to that contracting state.
A representative from the Ontario Central Authority will not ordinarily appear in court on behalf of left-behind parents from other contracting states. Ontario will, however, provide legal aid to left-behind parents who otherwise qualify for legal aid.
However, a representative of the Ontario Central Authority may appear in court as amicus curiae, as a friend of the court, and/or may provide affidavits of Canadian law to assist courts in other jurisdictions.
The main purpose of a Central Authority is to discharge the duties imposed upon central authorities by the Hague Convention. These duties include: to discover the whereabouts of a child who has been wrongfully removed or retained; to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; to secure the voluntary return of the child or to bring about an amicable resolution to the issues; to exchange, where desirable, information relating to the social background of the child; to provide information of a general character as to the law of their state, in connection with the application of the convention; 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 the organizing or securing of the effective exercise of the rights of access; to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; also, where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; and, finally, to keep each other informed with respect to the operation of this convention and, as far as possible, to eliminate any obstacles to its application.
In executing these duties, our office shares in the joy an Ontario parent experiences when a child is successfully returned and also shares in the frustration of dealing with non-compliant states.
I would like to conclude by describing the caseload of the Province of Ontario. Our office, year-over-year, processes the most cases in Canada; that is, we have the most wrongful removals from and to Ontario. Our current caseload is 44 cases. Of those, 17 are incoming return cases, 7 are incoming access cases, 18 are outgoing return cases, and two are outgoing access cases.
The Chair: Thank you very much.
May we now hear from Ms. Lipsack?
Penelope Lipsack, Barrister and Solicitor, Legal Services Branch, Ministry of Justice of British Columbia: Thank you for the opportunity to address the committee regarding the Hague Abduction Convention. I am a lawyer with the British Columbia Ministry of Justice and the delegated central authority for British Columbia under the convention. The success of any convention depends, in large part, upon mutual cooperation among the parties to the convention. As you've heard, the central authority is the office or person by which each state fulfills its obligations under the convention. The central authority has a broad and flexible role in furthering the goals of the convention. I will describe how Canadian provincial and territorial central authorities are able to contribute to cross-border cooperation and to encourage compliance with the convention. For ease of reference, I will refer to provincial central authorities going forward, although, of course, the territorial central authorities perform the same functions.
Central authorities participate in educating the public, lawyers and other stakeholders about the convention through public speaking and written materials. Some provinces, including British Columbia, have a website dedicated to providing Internet information concerning the operation of the convention. Many of the parents who contact me have done so as a result of seeing the B.C. website.
When parents contact my office out of fear that an abduction might occur, we refer them to legal counsel, to information about the convention and to other websites that provide information about how to prevent an abduction. If parents contact my office after an abduction has occurred, we refer them to legal counsel, to the police, to our B.C. website on child abduction, and to other resources that will assist the parent in dealing with the crisis they are facing.
As Mr. Foulds has mentioned, abduction cases are described as incoming or outgoing. Central authorities closely monitor the outgoing cases by contacting the foreign central authority on a regular basis for updates. This ensures the foreign jurisdiction knows we are paying attention to the progress and outcome of the case. We often develop close working relationships with the staff of the foreign central authority over time, which promotes communication and cooperation in future cases.
Central authorities will provide assistance to both parties to a Hague case, but our focus is on promoting the objectives of the convention. In other words, we assist left-behind parents more often than we assist taking parents.
Central authorities promote expeditious convention proceedings by helping the left-behind parent to obtain counsel, by providing evidence of the left-behind parent's rights of custody for use in the foreign court and by providing information about laws and resources within the province, which can safeguard a child and taking parent on their return.
Central authorities also monitor cases being heard before the courts in our own provinces to ensure our compliance with the convention. If a proceeding before the courts of a province is not concluded expeditiously, Article 11 of the convention authorizes a central authority to request an explanation for the delay from the courts.
Central authorities may work with judges within their province to develop guidelines on the efficient processing of Hague cases. Central authorities assist local and foreign counsel by referring them to international jurisprudence, which assists in a consistent application of the convention internationally.
On occasion, central authorities receive assistance from the federal Department of Foreign Affairs on outgoing cases, including when there are child welfare concerns. When requested, consular staff will facilitate communication with a foreign central authority by making contact with them in their own language. These contacts may have the added benefit of communicating to the foreign central authority the fact that Canada is interested in the Hague case and monitoring its progress.
Central authorities work closely with other partners, such as the RCMP national missing children's unit, federal agencies, such as Passport Canada, non-profit organizations, such as the Missing Children's Society of Canada, and social service agencies, all of whom provide invaluable assistance in locating children, ensuring their well-being and safely returning children to Canada.
Provincial central authorities meet with our federal counterpart approximately every two to three years to learn more about federal and provincial laws and initiatives relevant to the convention and to exchange information about best practices under the convention. In 2013, the Canadian central authorities met with central authority personnel from both the United States and Mexico. We learned about each other's legal systems and operations in a very useful and informative meeting. Every central authority has its own way of fulfilling its duties under the convention, but these are some examples of how they contribute to the success of the convention.
The Chair: Thank you very much. We will now go on to questions.
Senator Andreychuk: Thank you, both of you, for your presentations. What I gather is that you are the central authorities or expertise, at least, on the issue of The Hague convention. Just a practical thing: When you're contacted by people, are they aware of a Hague convention, or do they contact you saying that they want their children back and then you have to explain the process to them?
Ms. Lipsack: It's a little bit of both. Usually, I would say, when parents contact me, they have heard something about The Hague convention. They've either read about it on the Internet or been referred, by our legal services society, to my office. So they have some idea that there is a Hague Convention, but they may not have a great understanding of how it works.
Mr. Foulds: I agree. In fact, in speaking with the other counsel and case managers in the office, we're often amazed at the level of knowledge that left-behind parents have of the Hague Convention and their rights thereunder. It seems that there is a lot of information readily available to left-behind parents now, and they often come armed with that information and have a fairly good understanding of their rights, what can be done and what they would like to be done.
Senator Andreychuk: Mr. Foulds, you say they come armed knowing about the Hague Convention. Is it because their child had been abducted and they've gone, as you say, to a lawyer or to others and then were acquainted with the Hague Convention, or did they understand that there is some sort of process, even before there was this breakdown of the partnership and the child abduction?
Mr. Foulds: I get a sense it's the former; that once the event happens — once the wrongful retention or wrongful removal happens — they educate themselves through speaking with counsel or one of the NGOs, or by doing their own research through the Internet. They educate themselves and realize there are central authorities in each province that can help them in having their child returned to their province.
Senator Andreychuk: Can either one of you tell us whether the abductions that go overseas to another country are generally from your province to another country, or has there been some movement through Canada before the abduction is an international abduction?
Ms. Lipsack: Speaking for B.C., I can say that it's usually from point A to point B. Usually the parent is not moving through Canada first.
Senator Andreychuk: In Ontario?
Mr. Foulds: I would agree. Anecdotally, I think that's correct. Typically, an abduction takes place from Ontario, with a parent going back home, so to speak, back to their country of origin. Typically speaking, it's as Penny says: from point A to point B.
Senator Andreychuk: Custody issues are provincial jurisdiction, and we have 10 provinces and three territories. There has been facilitation at the federal level to ensure that we have a unified voice when we speak to the public, as the public now moves from province to province and indeed country to country.
How do you ensure there is some consistency, province to province? What mechanisms are you using to ensure that your message is coming through in a unified way?
Mr. Foulds: As Penny set out, not only do we meet every two to three years, but we have regular teleconferences between the central authorities from across the country. We speak to each other about the familiar issues we all encounter. Through that process, we ensure we come at the issues from the same perspective, and I think we do, for the most part. We all seem to share the same frustrations. We all encounter the same difficulties. For the most part, we try to get that message out to the public at large, using that unified voice.
Ms. Lipsack: Also, when we hear from one of our colleagues about a good idea or a good practice they have, others of us try to implement the same so that we can share the same success they do.
Senator Andreychuk: I have a supplementary to my own question: Do you contact the other country, or do you always work through the Department of Foreign Affairs, Trade and Development?
Mr. Foulds: We always contact the other country directly. The communication is from central authority to central authority. If the wrongful removal is between Ontario and the United States, for example, the Ontario central authority will deal directly with the American central authority to have the case processed.
The only time that the federal central authority is really involved at the front end is if it's a situation where the exact whereabouts of the taking parent is unknown. The other contracting state will often forward the Hague application to the federal central authority so that the trace and locate can be completed, the taking parent can be found and then the application can be relayed to the appropriate provincial and central authority.
Just to clarify: In terms of the day-to-day processing of the case, it's entirely provincial central authorities.
Senator Andreychuk: Is there training? It goes through one office, but people will go in somewhere in your system. Are people aware within the bureaucracy to come to you when there is an abduction case? Who sorts out the abduction case before it gets to the legal lines?
Ms. Lipsack: Speaking for B.C., my name, email address and phone number are out there. When people look on the Internet or get information about whom they should contact, they get me, and they contact me directly. It's very seldom that anybody else within the Ministry of Justice would receive an inquiry about an abduction. If they do receive it, yes, they do know to forward it to me immediately.
There's very little lost in the bureaucracy, if I can put it that way.
Senator Andreychuk: We've been told there's a time difference — that it takes time before we start looking at it as a Hague case. Who is doing the sorting out to determine whether an abduction is national, as opposed to international, which gets you to the Hague Convention?
Ms. Lipsack: With the very first communication we have with the parent, we would establish the facts of the case. If the parent tells us that their child was taken from Saskatchewan to British Columbia, then I know it's not a Hague case, and I'll refer them elsewhere. But if they tell me it's between Canada and the United Kingdom, I know we have a Hague case, and we go from there.
Senator Andreychuk: Are your cases mainly with Hague countries and others that have signed onto the convention, are you working under the Malta Process, or do you have the problem that they're in neither category and you have to try to find some answer to them?
Mr. Foulds: The provincial central authorities deal exclusively with the Hague Convention cases; that is, abduction or wrongful removals from or to a Hague state. Those are the only cases that any of the central authorities deal with.
If it's an abduction to a non-Hague state, the referral is made to the Department of Foreign Affairs, Trade and Development to follow up with the other country to see if there is a bilateral agreement and the like.
Senator Andreychuk: Is it the same in British Columbia?
Ms. Lipsack: Yes, it is.
Senator Eggleton: I'd like to ask you about formal exit controls. We don't have them but some countries do. It has come up a couple of times in previous representations made here as to being a method of curtailing a lot of the movement of children outside the country. From your perspective, would the work you do be the most helpful, or do you think other things also can be done in place of formal exit controls to stop the movement across the border?
Ms. Lipsack: If exit controls can be put into place, they would certainly be helpful, but we have to remember there are two kinds of abductions. There are ones where children are taken out of the country without permission, and that's what an exit control would address. But there are other cases where a parent takes the child out of the country with the left-behind parent's consent, on the understanding usually that they're going for a holiday or for a brief visit. It's once the parent is in the foreign country with the child that they say, "I'm not coming back." An exit control would have no impact on those cases.
I would say it's roughly 50-50 as to whether it's a wrongful abduction or whether it's a wrongful retention.
Senator Eggleton: I see. Interesting. Thank you.
Senator Hubley: I just have a very quick question, and it has to do with the chain of people who are notified if somebody is reporting an abduction. They perhaps would go to the police or the RCMP first, would they? When does it come to one of the central authorities?
Mr. Foulds: A party could go to the police and potentially try to have criminal charges pressed. That's an entirely different stream.
Logistically, what typically happens is the wrongful removal or retention occurs; the left-behind parent, either through counsel or speaking to an NGO or self-education, finds out about the Hague Convention, finds out about their local provincial central authority, and will contact our office directly.
During that initial consultation, our office will flesh out the facts of the case to make sure it fits under the general rubric of the Hague Convention: the child is under 16, the removal happened to a proper contracting state, an international state. We would then forward the appropriate documentation to the left-behind parent to fill out, and it's the administrative Hague application. We would receive it, make sure again that the case fits all the criteria under the Hague Convention, roughly speaking. We would then communicate with the reciprocating central authority, transfer that Hague application to that central authority and ask them to follow up on the case. Whether or not it's a case where the left-behind parent is requesting a voluntary return be attempted or if the left-behind parent requires legal aid or simply the retention of counsel, the other contracting state can refer them to particular counsel.
There are some central authorities, in fact, that will represent the left-behind parent in court as well, so they will take that case, the administrative Hague application, convert it into a court-based Hague application and run the Hague hearing.
Senator Hubley: So the police don't identify the Hague Convention cases as a rule? If they have information on an abduction, they don't qualify that, do they, as a Hague Convention case at that point in time? They don't refer that to you?
Ms. Lipsack: Occasionally, we do get referrals directly from the police, or the police may tell the parent that the parent should contact us directly, but it's not the police who make the determination as to whether it's a Hague case or not. They can simply say, "It sounds like it might be. I'm going to refer you."
The Chair: I'd like to touch on other processes that you have not spoken about, and you may not have any dealings with it, and I respect that. One is the Malta Process.
From time to time, do you have to deal with that, and how do you handle that? I know it's not as formal as the Hague process. I understand that, but from time to time it may be applicable.
Ms. Lipsack: I've had no involvement with it at all. My understanding is that there's a select committee of people who are dealing with that topic, and I've had no involvement with it.
The Chair: Is that the same for you, Mr. Foulds?
Mr. Foulds: That's exactly the same for our office. Again, the Ontario Central Authority, we deal exclusively with cases that follow under the Hague Convention.
The Chair: In 1996, we had the Convention on the Protection of Children, which Canada has not ratified. Are either of your offices involved in that, and can you tell us if you know the reasons why it has not been ratified?
Ms. Lipsack: I do not work directly on that convention. Within British Columbia, it's a different policy group that is responsible for it. All I can say is that B.C. is working on it and is favourably disposed to it.
Mr. Foulds: The situation is essentially the same in Ontario. Our office doesn't directly deal with the 1996 convention. I know there are counsel and policy people with the Ministry of the Attorney General that are reviewing and analyzing it. I suppose it comes up from time to time for consideration from the federal government, but it's my understanding that it's not a very hot or topical issue. I think perhaps that changes from time to time, but I don't think there's anything on the horizon that I know of.
The Chair: The concern we have, I think it has been for 18 years that we're talking about ratification. I would very much appreciate it if you could speak to your colleagues and if there is something you can provide to us in writing. We are a little curious as to why it is taking 18 years to ratify something. We would appreciate your input on that.
I want to take this opportunity to thank you for your presentations. We look forward to working with you in the future.
I would like to let members know that next week we will be looking at the Pope John bill and also garment workers.
(The committee adjourned.)