Preamble
1) The 1980 Hague Convention on the Civil Aspects of
International Child Abduction (“the 1980 Hague Convention”) became
the law in Manitoba on December 1, 1983 pursuant to ss. 17(2) of
The Child Custody Enforcement Act.
2) Article 1 of the 1980 Hague Convention provides the following
objectives:
a) to secure the prompt return of children wrongfully
removed to or retained in any contracting state; and
b) to ensure that rights of custody and of access under
the law of one contracting state are effectively
respected in the other contracting states.
3) Article 11 of the 1980 Hague Convention provides in part as
follows:
The judicial or administrative authorities of contracting
states shall act expeditiously in proceedings for the
return of children.
4) The Family Law Branch of the Manitoba Department of
Justice fulfills the responsibilities of Central Authority pursuant to the
1980 Hague Convention for Manitoba.
5) To ensure that return applications under the 1980 Hague
Convention are dealt with expeditiously the attached procedural
protocol has been developed by the Court of Queen’s Bench in
Manitoba.
PROCEDURAL PROTOCOL
1) The Chief Justice of the Court of Queen’s Bench will ask
Manitoba’s Central Authority to advise the Associate Chief
Justice of the Family Division or in his absence the Family
duty judge when they intend to initiate proceedings in
Manitoba for the return of a child pursuant to the 1980
Hague Convention on the Civil Aspects of International Child
Abduction (“the 1980 Hague Convention”).
2) Article 16 of the 1980 Hague Convention1 provides that
where a court has notice of the alleged wrongful removal or
retention of a child, the Court shall not deal with the merits
of rights of custody until an application for return pursuant
to the Convention (“return application”) has been
determined, unless a return application is not filed within a
reasonable time after notice is given to the Court.
3) When Article 16 is invoked and the Court of Queen’s Bench
receives notice of an alleged wrongful removal or retention
on the filing of a return application, notice as contemplated
under Article 16 may also be provided by the Central
Authority filing a Requisition notifying the Court of the case.
The filing of a Requisition giving notice under Article 16 will
be sufficient to open a Court file where no file exists. This
1 Article 16 of the 1980 Hague Convention provides: After receiving notice of a wrongful removal
or retention of a child in the sense of Article 3, the judicial or administrative authorities of the
Contracting State to which the child has been removed or in which it has been retained shall not
decide on the merits of rights of custody until it has been determined that the child is not to be
returned under this Convention or unless an application under this Convention is not lodged
within a reasonable time following receipt of the notice.
would subsequently be followed in the normal course by the
filing of a return application.
4) (a) The return application will be commenced in the Court
as a Notice of Application (Form 70E) and the existing Rules
of Court, with respect to notice, service, evidence and
procedure will apply.
(b) Where the Applicant or Central Authority seeks to
abridge time or to proceed on an urgent or without notice
basis, the Court may permit this where the circumstances
warrant proceeding in this way.
(c) When the return application first comes before the Court
the presiding judge or stand-by judge, as the case may be,
will undertake the responsibility of:
i) establishing appropriate timelines for the filing
and service of further materials; and
ii) setting the application down for hearing
and in carrying out these responsibilities will have regard to
the requirement for an expeditious determination of the
matter. The trial coordinator is to be advised that return
applications pursuant to the 1980 Hague Convention are to
be given priority on the setting of times.
(d) Any party, including a left-behind parent, may appear by
way of telephone conference or video conference where
appropriate and where facilities are available. The Central
Authority, through the Family Law Branch of Manitoba
Justice, will facilitate any such arrangements for the
participation of the left-behind parent.
5) No case conference will be required for return applications in
Winnipeg Centre pursuant to the 1980 Hague Convention in
which the Central Authority is directly involved.
6) Unless the order is signed when the judge decides on the
Application for Return, at that time an appointment should
be made to meet with the same judge to have the order
signed. This should take place within 24 hours of the
decision being rendered. Any request for a stay of the order
could be considered at that time.
7) Article 29 of the 1980 Hague Convention2 allows persons to
bring return applications directly, rather than through the
Central Authority. The Central Authority is to be notified of
direct applications.
8) The Central Authority is to be notified of the commencement
of any Court proceedings respecting custody or private
guardianship of, or access to, a child who is the subject of a
Requisition giving notice as contemplated by Article 16 or a
return application, until such time as the return application is
determined by the Court.
9) This protocol is to be modified where appropriate and where
necessary to apply to proceedings to enforce custody orders
under The Child Custody Enforcement Act.
APPROVED – JUNE, 2007
2 Article 29 of the 1980 Hague Convention provides: This Convention shall not preclude any
person, institution or body who claims there has been a breach of custody or access rights within
the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities
of a Contracting State, whether or not under the provisions of this Convention.