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Quebec
An Act
respecting the civil aspects of international and interprovincial
child abduction
Chapter A-23.01
Preamble
WHEREAS the Convention on the Civil Aspects of International Child
Abduction signed at The Hague on 25 October 1980 aims to protect
children internationally from the harmful effects of their wrongful
removal or retention;
Whereas the Convention establishes procedures to ensure the prompt
return of children to the State of their habitual residence and to
secure protection for rights of access;
Whereas Québec subscribes to the principles and rules set forth in
the Convention and it is expedient to apply them to the largest
possible number of cases;
THE PARLIAMENT OF QUÉBEC ENACTS AS FOLLOWS:
CHAPTER I
INTERPRETATION AND APPLICATION
Object.
1. The
object of this Act is to secure the prompt return to the place of
their habitual residence of children removed to or retained in
Québec or a designated State, as the case may be, in breach of
custody rights.
Object.
A further object of this Act is to ensure that the rights of custody
and access under the law of a designated State are effectively
respected in Québec and the rights of custody and access under the
law of Québec are effectively respected in a designated State.
1984, c. 12, s. 1.
Interpretation.
2. For
the purposes of this Act,
“rights of custody”;
(1) “rights of custody” shall include rights relating to the care
of the person of the child and, in particular, the right to
determine the child's place of residence;
“rights of access”;
(2) “rights of access” shall include the right to take a child for
a limited period of time to a place other than the child's habitual
residence;
“designated State”.
(3) “designated State” means a State, a province or a territory
designated under section 41.
1984, c. 12, s. 2.
Wrongful removal or retention.
3. The
removal or the retention of a child is to be considered wrongful,
within the meaning of this Act, where it is in breach of rights of
custody attributed to one or several persons or bodies under the law
of Québec or of the designated State in which the child was
habitually resident immediately before the removal or retention and
where, at the time of removal or retention, those rights were
actually exercised by one or several persons or bodies or would have
been so exercised but for the removal or retention.
Right of custody.
The rights of custody mentioned in the first paragraph may arise in
particular by operation of law, or by reason of a judicial or
administrative decision, or by reason of an agreement having legal
effect under the law of Québec or of the designated State.
1984, c. 12, s. 3.
Wrongful removal or retention..
4. In
addition to the cases contemplated in section 3, the removal or the
retention of a child is considered wrongful if it occurs when
proceedings for determining or modifying the rights of custody have
been introduced in Québec or in the designated State where the child
was habitually resident and the removal or retention might prevent
the execution of the decision to be rendered.
1984, c. 12, s. 4.
Applicability.
5. This
Act shall apply to any child under sixteen years of age who was
habitually resident in Québec or in a designated State immediately
before any breach of custody or access rights. In all cases it shall
cease to apply when the child attains sixteen years of age.
1984, c. 12, s. 5.
Central Authority.
6. For
the purposes of this Act, the Minister of Justice is the Central
Authority for Québec, and in a designated State the Central
Authority is the authority appointed by that designated State.
Furthermore, the Superior Court is the competent judicial authority
for Québec.
1984, c. 12, s. 6.
CHAPTER II
CENTRAL AUTHORITIES
Minister of Justice.
7. The
Minister of Justice shall co-operate with the Central Authorities of
the designated States and promote cooperation amongst the competent
authorities in Québec to achieve the objects of this Act.
1984, c. 12, s. 7.
Duties of the Minister.
8. The
Minister of Justice, either directly or through any intermediary,
shall take all appropriate measures
(1) to discover the whereabouts of a child who has been wrongfully
removed or retained;
(2) to prevent further harm to the child or prejudice to interested
parties by taking or causing to be taken provisional measures;
(3) to secure the voluntary return of the child or to bring about
an amicable resolution of the issues;
(4) to exchange, where desirable, information relating to the
social background of the child;
(5) to provide information of a general character as to the law of
Québec in connection with the application of this Act;
(6) to initiate or facilitate the institution of judicial
proceedings for the purposes of the application of this Act;
(7) to provide, or in certain cases, facilitate the provision of
legal aid;
(8) to provide such administrative arrangements as may be necessary
and appropriate to secure the safe return of the child;
(9) to keep the Central Authorities of the designated States
informed with respect to the operation of this Act and, as far as
possible, to eliminate any obstacles to its application.
Expeditious measures.
The Minister of Justice and the competent authorities responsible
for the application of this Act shall act expeditiously in taking
the measures provided for in this section.
1984, c. 12, s. 8.
Information.
9. The
Attorney General or a person designated by him may address a motion
to a judge of the Superior Court or, in the absence of a judge
responsible for rendering justice, to a prothonotary, for the
purpose of ordering a person to furnish to the applicant the
information in his possession and permitting, if need be, that that
person be interrogated before the prothonotary as to the whereabouts
of the child or the person with whom the child might be.
Protected information.
This section applies notwithstanding any inconsistent provision of
any general law or special Act providing for the confidentiality or
non-disclosure of certain information or documents. However, it does
not apply to a person who has received the information in the
exercise of his profession and who is bound by professional secrecy
towards the child or the person with whom the child might be.
1984, c. 12, s. 9.
Warrant.
10. On
a motion by the Attorney General or a person designated by him, a
judge of the Superior Court may issue a warrant ordering a peace
officer to make the necessary inquiries in view of discovering the
whereabouts of a child and take him without delay before the
director of youth protection having jurisdiction in the district
where the child is in order that the director exercise his
responsibilities under the first paragraph of section 11.
1984, c. 12, s. 10.
Urgent measures.
11. The
case of a child contemplated in an application may be referred to a
director of youth protection to allow him to take, in respect of
that child, the required urgent measures, to see, as the case may
be, to the application of voluntary measures he recommends and to
undertake negotiations in view of the voluntary return of the child.
Duration.
In no case may the director apply the urgent measures for longer
that forty-eight hours unless authorized to do so by a judge of the
Superior Court on the conditions he indicates.
1984, c. 12, s. 11.
Access rights.
12. This
chapter also applies to secure the peaceful enjoyment of access
rights and the fulfilment of any conditions to which those rights
may be subject and to remove, as far as possible, all obstacles to
the exercise of such rights.
1984, c. 12, s. 12.
CHAPTER III
RETURN OF THE CHILD
DIVISION I
APPLICATION TO THE CENTRAL AUTHORITY
Application for assistance.
13. Any
person claiming that a child has been removed or retained in breach
of custody rights may apply either to the Minister of Justice or to
the Central Authority of a designated State for assistance in
securing the return of the child.
1984, c. 12, s. 13.
Content..
14. The
application shall contain
(1) information concerning the identity of the applicant, of the
child and of any person alleged to have removed or retained the
child;
(2) where available, the date of birth of the child;
(3) the grounds on which the applicant's claim for return of the
child are based;
(4) a written authorization giving the Central Authority the power
to act on behalf of the applicant or to designate a representative
to act in his name;
(5) all available information relating to the whereabouts of the
child and the identity of the person with whom the child is presumed
to be.
1984, c. 12, s. 14.
Documents.
15. The
application may be accompanied or supplemented by
(1) an authenticated copy of any relevant decision or agreement;
(2) a certificate or an affidavit emanating from the Central
Authority or another competent authority of Québec or of the
designated State of the child's habitual residence, or from a
qualified person, concerning the relevant law in the matter;
(3) any other relevant document.
1984, c. 12, s. 15.
Application not founded.
16. When
it is manifest that the requirements of this Act are not fulfilled
or that the application is otherwise not well founded, a Central
Authority is not bound to accept the application. In that case, the
Central Authority shall forthwith inform the applicant or the
Central Authority through which the application was submitted, as
the case may be, of its reasons.
1984, c. 12, s. 16.
Presence of child in a designated State.
17. If
the Minister of Justice, after an application has been referred to
him, has reason to believe that the child is in a designated State,
he shall directly and without delay transmit the application to the
Central Authority of that State and inform the requesting Central
Authority, or the applicant, as the case may be.
1984, c. 12, s. 17.
DIVISION II
JUDICIAL PROCEEDINGS
Forced return of a child.
18. In
order to obtain the forced return of a child, the Minister of
Justice or the person claiming that there has been a breach of
custody rights shall make an application by way of a motion to the
Superior Court of the place where the child is or of another
appropriate place according to the circumstances.
Procedure.
The application is subject to the rules set forth in the Code of
Civil Procedure (chapter C-25) in respect of motions based on Book
II of the Civil Code of Québec, to the extent that those rules are
consistent with this Act.
1984, c. 12, s. 18.
Precedence.
19. Any
judicial proceedings for the return of a child have precedence over
all other matters as provided in article 861 of the Code of Civil
Procedure (chapter C-25) for habeas corpus proceedings.
1984, c. 12, s. 19.
Order of the Court.
20. Where
a child who is in Québec has been wrongfully removed or retained and
where, at the time of commencement of the proceedings before the
Superior Court, a period of less than one year has elapsed from the
date of the removal or retention, the Superior Court shall order the
return of the child forthwith.
Order of the Court.
The Superior Court, even where the proceedings have been commenced
after the expiration of the period of one year, shall also order the
return of the child, unless it is demonstrated that the child is now
settled in his or her new environment.
1984, c. 12, s. 20.
Opposition.
21. The
Superior Court may refuse to order the return of the child if the
person who opposes his or her return establishes that
(1) the person having the care of the person of the child was not
actually exercising the custody rights at the time of removal or
retention, or had consented to or subsequently acquiesced in the
removal or retention; or
(2) there is a grave risk that his or her return would expose the
child to physical or psychological harm or otherwise place the child
in an intolerable situation.
1984, c. 12, s. 21.
Refusal.
22. The
Superior Court may also refuse to order the return of the child if
(1) it finds that the child objects to being returned and has
attained an age and degree of maturity at which it is appropriate to
take account of his or her views;
(2) the return is contrary to the human rights and freedoms
recognized in Québec.
1984, c. 12, s. 22.
Social background.
23. In
considering the circumstances referred to in sections 21 and 22, the
Superior Court shall take into account, in particular, the
information relating to the social background of the child provided
by the Central Authority or other competent authority of the
designated State in which the child is habitually resident.
1984, c. 12, s. 23.
Stay of proceedings.
24. Where
the Superior Court has reason to believe that the child has been
taken from Québec, it may stay the proceedings or dismiss the
application for the return of the child.
1984, c. 12, s. 24.
Decision of the Court.
25. The
Superior Court, after having been notified that a child has been
wrongfully removed or retained in Québec, shall not decide on the
custody of the child if the conditions set out in this Act for the
return of the child may be fulfilled or if an application for his or
her return may be made within a reasonable time.
1984, c. 12, s. 25.
Grounds for decision taken into account.
26. The
sole fact that a decision relating to custody has been given in or
is entitled to recognition in Québec shall not be a ground for
refusing to order the return of a child, but the Superior Court may
take account of the reasons for that decision which are relevant to
the application of this Act.
1984, c. 12, s. 26.
Reasons for delay.
27. If
the Superior Court has not reached a decision within six weeks from
the date of commencement of the judicial proceedings, the Minister
of Justice shall indicate, if he is so required by the applicant or
the requesting Central Authority, the reasons for the delay.
1984, c. 12, s. 27.
Determining if removal is wrongful.
28. In
ascertaining whether there has been a wrongful removal or retention,
the Superior Court may take notice directly of the law of, and of
judicial or administrative decisions, formally recognized or not in
the designated State in which the child is habitually resident,
without recourse to the specific procedures for the proof of that
law or for the recognition of foreign decisions which would
otherwise be applicable.
1984, c. 12, s. 28.
Production of decision.
29. The
Superior Court, before ordering the return of a child, may request
that the applicant produce a decision or attestation from the
authorities of the designated State in which the child is habitually
resident that the removal or retention was wrongful, where such a
decision or attestation may be obtained in that State.
Attestation of wrongful removal.
The Superior Court may, upon the motion of an applicant wishing to
obtain the return of a child to Québec, issue an attestation stating
that the removal or retention was wrongful. The Minister of Justice
shall so far as practicable assist applicants to obtain such an
attestation.
1984, c. 12, s. 29.
Merits of custody issue.
30. A
decision under this Act concerning the return of a child shall not
be taken to be a determination on the merits of any custody issue.
1984, c. 12, s. 30.
CHAPTER IV
RIGHTS OF ACCESS
Exercise of rights of access.
31. An
application to make arrangements for organizing or securing the
effective exercise of rights of access may be presented to the
Minister of Justice or to the Central Authority of a designated
State in the same way as an application for the return of a child.
1984, c. 12, s. 31.
Conditions of exercise.
32. The
Minister of Justice may initiate or assist in the institution of
proceedings with a view to organizing or protecting access rights
and securing respect for the conditions to which the exercise of
these rights may be subject.
Motion.
Section 18 applies if the proceedings consist of an application
addressed to the Superior Court.
1984, c. 12, s. 32.
CHAPTER V
MISCELLANEOUS PROVISIONS
Application to competent authority.
33. This
Act shall not preclude any person who claims that there has been a
breach of custody or access rights from applying directly to the
Superior Court or to the judicial or administrative authorities of
any designated State, whether or not under the provisions of this
Act, except section 10.
1984, c. 12, s. 33.
Admissibility of application.
34. Any
application submitted to the Minister of Justice or to the Central
Authority of a designated State or directly to the Superior Court or
the judicial or administrative authorities of a designated State in
accordance with the terms of this Act, together with documents and
any other information appended thereto or provided by a Central
Authority, shall be admissible in the Superior Court.
1984, c. 12, s. 34.
Security not required.
35. No
security shall be required to guarantee the payment of costs and
expenses in the judicial proceedings falling within the scope of
this Act.
1984, c. 12, s. 35.
Applicability of the Act.
36. No
legalization or similar formality may be required for the
application of this Act.
1984, c. 12, s. 36.
Legal aid.
37. Nationals
of a designated State and persons who are habitually resident in
that State shall be entitled, in matters concerned with the
application of this Act, to legal aid in Québec as provided in the
Legal Aid Act (chapter A-14).
1984, c. 12, s. 37.
Charge not exigible.
38. No
charge shall be required from the applicant in relation to
proceedings instituted under this Act.
Expenses.
Notwithstanding the foregoing, the Minister of Justice may require
the applicant to pay the expenses incurred or to be incurred in
implementing the return of the child. The applicant is also required
to pay, subject to section 37, court costs as well as costs arising
from legal aid or legal representation.
1984, c. 12, s. 38.
Expenses exigible.
39. Upon
ordering the return of a child or issuing an order concerning rights
of access under this Act, the Superior Court may, where appropriate,
direct the person who removed or retained the child, or who
prevented the exercise of rights of access, to pay necessary
expenses incurred by or on behalf of the applicant, including travel
expenses, the costs of legal representation of the applicant, and
those of returning the child, and any costs incurred or payments
made for locating the child.
1984, c. 12, s. 39.
Conventions and agreements.
40. This
Act does not preclude the implementation of conventions or
agreements between a designated State and Québec or of other
provisions of Québec law, particularly to obtain the return of a
child wrongfully removed or retained, to organize rights of access
or to extend the scope of this Act to include any child under
18 years of age.
Conventions and agreements.
The conventions, agreements or other provisions referred to in the
first paragraph may provide for more favorable conditions for the
return of a child than are provided in this Act.
1984, c. 12, s. 40.
CHAPTER VI
FINAL PROVISIONS
Reciprocity.
41. The
Government, upon the recommendation of the Minister of Justice and,
as the case may be, of the Minister responsible for Canadian
Intergovernmental Affairs or the Minister of International
Relations, shall designate by order any State, province or territory
in which he considers that Québec residents may benefit from
measures similar to those set out in this Act.
Effective date.
The order shall indicate, in particular, the date of the taking of
effect of this Act for each State, province or territory designated
in it and shall be published in the Gazette officielle du Québec.
1984, c. 12, s. 41; 1988, c. 41, s. 87; 1994, c. 15, s. 33;
1996, c. 21, s. 70.
Regulations.
42. The
Government may make any expedient regulation for the administration
of this Act.
Coming into force.
Such a regulation shall come into force ten days after its
publication in the Gazette officielle du Québec or on any later date
indicated therein.
1984, c. 12, s. 42.
Applicability.
43. This
Act applies only to wrongful removals or retentions which occurred
after its taking of effect in respect of the designated State
concerned.
1984, c. 12, s. 43.
Sums required.
44. The
sums required for the implementation of this Act are taken from the
appropriations granted annually for such purpose by Parliament.
1984, c. 12, s. 44.
Minister responsible.
45. The
Minister of Justice is responsible for the administration of this
Act.
1984, c. 12, s. 45.
46. (This
section ceased to have effect on 12 December 1989).
1984, c. 12, s. 46.U.K., 1982, c. 11, Sch. B, Part I, s. 33.
47. (Omitted).
1984, c. 12, s. 47.
REPEAL SCHEDULE
In accordance with section 17 of the Act respecting the
consolidation of the statutes and regulations (chapter R-3),
chapter 12 of the statutes of 1984, in force on 1 March 1985, is
repealed, except section 47, effective from the coming into force of
chapter A-23.01 of the Revised Statutes.
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