Shirtback

[QUOTE=Almost Canadian;11243598]Having dealt with one or two such applications in the past I can honestly say that this is bollocks.

Could you please point me in the direction of any legal authority where the authority has referred to "possession being 9/10ths of the law" when making a determination of the appropriate place for residence of children.[/UNQUOTE]

No legal authority would/should do so. You are quite right. I should have been less succinct in my post.

Perhaps I should have said that: once a child has been successfully illegally removed from one country to another, & notwithstanding international conventions to ensure that legal custody rights be acknowledged & enforced in said countries, *actual* *enforcement* of said conventions & rights can be difficult. Not to mention that actually finding the exact whereabouts of said child may be problematic.



The Hague Convention is convenient, & simple on paper, & (usually) in the courts of signatories. Practical application of its provisions is sometimes less than easy. And can cost $$$.

Not all cases concerning Convention signatories come under its eagis.

(When I originally posted, I was trying to point out that border controls concerning minors are A Good Thing. I didn't expect to get into a dispute/discussion on the HC!)

Sorry for the messed up quotes, trying to fix them.

S

Almost Canadian

How many Hague Convention cases have you been involved with? What legal fees did you have to pay?

The non defaulting party's legal fees should be non-existent, as they are borne by the Central Authority, i.e. the State.

I doubt anyone would care that the defaulting party has to pay significant legal fees

Shirtback

Er, Whoa, Almost Canadian; pace: please!!

I'm certainly not going to give particulars of *my* personal dealings with cases involving the HC on a public forum.

If you really need precise data, I'm happy to discuss this further in private. However, the relevant legal data is available at canlii.org &/or jugements.qc.ca. (I'm in there, twice, at least.).

Legal fees are, in some cases, required upfront, & a court judgement awarding costs, does not mean that one will actually ever see said costs reimbursed.

And my original comments had nothing to do with this digression, rather about the safety, & verification thereof of travelling children.

Deep breath : Let's remember, this is a general thread concerning letters of permission for travel with children

S

FirstRatofftheShipUK

Says it all. No legal requirement...and signing the recommended template letter in front of a lawyer or notary has no legal significance at all. Yes - it has the impression factor for the individual border guard's discretion, but no more legal then the toilet paper you used after Timmy Ho before boarding.

Looked at from the other pov, if child 'abduction' is a real concern get a lawyer to get a court order taking passports away.

FirstRatofftheShipUK

That only works with property such as motor vehicles. Total BS with children. People routinely 'have' their children with them when the court has ordered exactly the opposite.

FirstRatofftheShipUK

FL - If I had your individual statutory discretion I would ask to see a court order permitting travel (if your gut says this is fishy).

Former Lancastrian

Logically that sounds good but from a practical side doesn't always happen.
Due to the legal complex issues there are days when CBSA officers might as well throw their hands up and say "Why do we bother at all?"

If the child is a Canadian citizen, PR or Status Indian then they have the right to enter Canada full stop.
9.1. The right to come into Canada
A Canadian citizen within the meaning of the Citizenship Act has a right to enter and remain in Canada pursuant to A19(1).
Examining registered Indians at ports of entry
A19(1) provides that every person registered as an Indian under the Indian Act, whether or not that person is a Canadian citizen, has the right to enter and remain in Canada
Rights of permanent residents
A27(1) provides that a permanent resident has the right to enter and remain in Canada subject to the provisions of the Act.
A19(2) requires an officer to allow a permanent resident to enter Canada if satisfied following an examination on their entry that they have that status.

What compounds the problems is Canada does not have exit controls yet though certain designated airports have US pre clearance facilities where if they wanted USCBP can deny entry to persons seeking entry into the USA while still on Canadian soil. Do USCBP officers routinely ask for these letters then the answer is NO.
So imagine you are a Canadian family (all citizens) living in another country and all have Canadian passports. The marriage is now on the rocks and you are having difficulties. Hypothetically speaking you come home from work and there is the dear John/Jane letter if you are lucky. OH has packed up and taken off with the kids.
In your view is it better to have them stopped entering Canada or you don't worry as your lawyer can now initiate proceedings to have them returned and sort out custody issues within the legal system.

Now you are a family with dual citizenship of another country living in Canada with both sets of passports and the same thing happens. You honestly believe any court order will stop a determined person.
How easy do you think it is to get a court to issue an order having any passports be taken away from people.

How about the next time I see a media article where a parent is blaming CBSA for not checking and they are having trouble getting their kids returned do I sheepishly say "What did you expect us to do? and what are our legal rights to stop them entering when no court orders exist or not the subject of an Amber Alert etc.

Im sorry if I can stop an abduction and I might sort of go against the legislation or procedures then so be it. Isn't that what you would want if they were your children?

rae

[QUOTE=Former Lancastrian;11237544]I have often been asked "Why are you asking me for a letter of consent these are my kids?"
Some parents are quite hostile while others are very happy to show me such a letter.

WE HAVE A RIGHT TO QUESTION YOUR GROUNDS


Is it a legal requirement to have one then the simple answer is NO.


AND THAT IS THAT

From my point of view how do I know that when crossing back into Canada you have not abducted that child from the other parent in another country?

LOOK AT THE OBVIOUS WARNINGS AT PASSPORT CONTROL

Of course they complain that the US or UK or other countries authorities didn't ask to see a letter so why are you now asking for it?

EXACTLY, WHICH SHOWS WHY THIS FOR THE MOST PART IS ALL ABOUT PERCEPTION, PREJUDICE, STEREOTYPING.



In its purest form this is clearly a worthwhile and necessary function of border agents, however, like most things it is subject to abuse.

Here is my issue. I have a right not to be arbitrarily detained, a clear charter right. Yet as you put it yourself I will be detained until you are satisfied, based on what? I need reasonable probable grounds to suspect an offence has been committed, is being committed or suspect may be committed, not so at the airport it would appear.
Fundamentally it comes down to this, the power to stop people boarding that flight empowers abuse of this privilege and enables prejudice, fostering injustice.

Here is my example. I was stopped at Toronto moving from the US side to get an internal connection. A rude and forceful demand was made for the letter from my wife. My response absolutely was as you indicate and have experienced and here is why:-
How do you know I am married?
How do you know my wife is still alive?
Why did you not stop the three mothers alone with their daughter who just passed you in the same party?
Why are you asking me this question when I am RETURNING to Canada from the USA. (first time I was asked all trip)
Why are you asking me when both passports are in the same last name, my daughter is 13yrs old and clearly able to articulate possible reasons for her kidnap herself?

Needless to say my answers did not sit well with her. I formed the distinct impression that the anal probe was pending. I then dropped into conversation my 17yrs as a police officer and Detective did not enable me to act so loosely on individual baseless suspicion as she was doing. She quickly wound her neck in and I walked off.

My point is no investigation, no access to records, no checks, just assumptions. This is unacceptable. If I stopped someone tonight because they were black and so thought they had drugs on them and searched them due to this I would be sacked. Yet you can stop single Dads travelling with their kids and hold them until "I am satisfied" Ridiculous.

I have never, and will never get a letter, and the second I am held for this I will sue the arse of whoever does it.

rae

wow, I would be incredibly careful about posting remarks like this, you may find you are the one under arrest for unlawful confinement, sec 279(2) criminal code.

Former Lancastrian

Though that offence might exist and having read the previous post about your situation one would certainly have to prove unlawful confinement when IRPA gives us the authority to examine all persons entering Canada.
What I did not post in my answer was satisfied as to establish their identity
as found in these 2 sections

Examination by officer
18. (1) Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada.
(2) Subsection (1) also applies to persons who, without leaving Canada, seek to leave an area at an airport that is reserved for passengers who are in transit or who are waiting to depart Canada.

19. (1) Every Canadian citizen within the meaning of the Citizenship Act and every person registered as an Indian under the Indian Act has the right to enter and remain in Canada in accordance with this Act, and an officer shall allow the person to enter Canada if satisfied following an examination on their entry that the person is a citizen or registered Indian.

Now we could start some light hearted banter even in ways both any Police Force or the CBSA can get creative where they are not actually breaking the law but treading very closely. However if you are insisting that I have no reason to ask you questions then we can agree to disagree and for these reasons I indicated I highly doubt the CPS would recommend charges be laid and for a case like that to even get to court. There again maybe section 25 of that same code might come into play
So in your opinion should we even worry about child abduction by the other parent.
The vast majority of people I have asked for a letter of consent have usually produced a birth certificate with just one parent named, a court order showing full custody or in the rarest cases a death certificate of the other parent.

bats

oh how awful, having to prove you are widowed.

rae

Of course we should be concerned about child abduction, this legislation has merits obviously, it is the application, or the quasi application I take issue with.
I think generally you have been OK as you have come across friendly rule abiding Canadians, obnoxious ex-pats are another thing altogether.

Former Lancastrian

So in your opinion do I have the legislative authority to question any person entering or leaving Canada and until I am satisfied as to their identity I am allowed to question them during the routine course of an examination which is not a detention as per the Supreme Court of Canada. If during a routine examination I suspect on reasonable grounds that an offence is being committed under an Act of Parliament by virtue of section 495 of the CCC I can arrest without warrant. Is that a suitable enough answer for you? Wouldn't abduction fall under section 279 that you quoted?

rae

Yes, but we are not talking about questioning to confirm identity, or immigration status, or any of the other pertinent sections in the acts you reference. You are questioning at this point, as I understand it anyway, to ascertain whether a criminal offence has been committed, i.e. child abduction. So in this case I would ask what grounds do you have to reasonably SUSPECT, lot less burden of proof than BELIEVE, that a criminal offence has been committed. If you were to say, "well you are a single male travelling alone with a child" personally I would of thought you are on very thin ice.

If you have detained lawfully to establish identity, fine, then while doing this you suspect a criminal offence as you have pointed out under 495 cc absolutely fill your boots. I mentioned 279 as you mentioned skirting around this and detaining people without the lawful authority, this would be at best unlawful detention, and at worst a criminal code offence.

Former Lancastrian

But as I mentioned what is considered skirting around the law when you don't actually break it but are somewhat bending it. What you consider reasonable grounds, what I consider them and what any judge does are all different. Its been awhile since I was a copper in the UK but aren't the Judges Rules still applicable today although probably revised since I left in 1988.
An examination is not a detention therefore not considered a detention. Now one could argue that this will depend on the duration of the exam and what steps were taken during the exam to make a decision.
How many coppers have pulled over a vehicle containing 4 youths they wish to question. Oh look they failed to indicate or committed any other amount of a moving vehicle offence so grounds to pull them over?
I totally understand my authorities and powers much the same as you do. Im not in favour of abusing those but when those lines are grey then there is that possibility of any Law Enforcement Officer using that grey area in cases like abduction.