The divorced parent’s worst nightmare

A Toronto woman had sole custody of her two children, but she allowed her ex-husband to use them in a trip to Europe.  A few weeks later, she received a phone call from them – from Afghanistan:

Zaiba Zaiba has full custody of seven-year-old Mateen and four-year-old Hosna and approved for their father to take them both on a trip to Europe in June.

‘I don’t understand why the government cannot bring my children back.’
—Zaiba Zaiba, Toronto mother
Several weeks later, she unexpectedly received a call from a number in the Middle East and realized her children’s fate.

“When I saw the number I was shocked because I don’t get (many) calls from Afghanistan,” she said. “When I said ‘hello’ and recognized his voice I was in tears and I knew that he took them.”

The weeks since have been an emotional struggle, which she has spent pleading with the Department of Foreign Affairs, the RCMP, Toronto police and even her local member of Parliament for help in bringing her Canadian-born children back home.

“I don’t understand why the government cannot bring my children back,” she told CBC News in an exclusive interview.

Foreign Affairs said it’s been made aware of Zaiba’s case and is continuing to provide “consular assistance.”

But family lawyer Andrew Feldstein said Zaiba will face an uphill battle because Afghanistan is a country that has not signed on to the Hague Convention — an international agreement that, in part, protects children from abduction.

“Which means you would need a court in Afghanistan to agree that the children ought to be returned to Canada,” Feldstein said. “You’re subject to their laws because that’s where, regrettably, the children are right now.”

Here’s a list of countries which have signed the Hague Convention. If your ex is from a country which isn’t on the list, I would take a hard line against allowing him or her to remove the children from Canada.  If the other parent asks for it, say no.  If he or she commences a court application, fight it. If an order allowing their removal is issued, appeal it.

I can sympathise with a parent from outside of Canada who wants the kids to see their ancestral home and meet their extended family.  Certainly, in the absence of any safety risks to the children, access in Canada should be facilitated. But if there’s no legal way to bring the kids back from the other parent’s home country, the risk is just too great.

What I’d really like to know about the Zaiba case is how the father got the children from Europe to Afghanistan. If a person is traveling alone with children, He usually won’t be allowed through customs without documentation confirming that he’s allowed to travel with them.

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About Damian P.

Lawyer with Bedford Law, Bedford, Nova Scotia.
This entry was posted in Family Law and tagged , , , , . Bookmark the permalink.

One Response to The divorced parent’s worst nightmare

  1. Bruce Rheinstein says:

    It isn’t just countries that haven’t signed the Hague Convention, but many that have, too. For example, Lady Catherine Meyer, wife of the former British Ambassador to the United States, was unable to get the German legal system to enforce the convention when her former husband, a German national, failed to return her sons from visitation. She was forbidden by the German legal system from having contact and didn’t see them again until many years later when they were full-grown. http://www.dailymail.co.uk/news/article-2188748/Richard-Kay-Lady-Meyer-rebuilds-life-lost-sons.html

    Likewise, even in countries the do abide by the convention, the process can be expensive, time consuming, and complex, and the outcome far from certain.

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