In the realm of international child abduction cases, a “chasing order” plays a pivotal role under the auspices of the Hague Convention on the Civil Aspects of International Child Abduction.
This legal framework, implemented in Ontario through the Children’s Law Reform Act, seeks to swiftly return children wrongfully removed or retained in another Hague Contracting State to their habitual residence. The aim is to uphold the custody and access rights established in the original jurisdiction and prevent any advantage gained by the wrongful removal or retention.
The case of Bayar-Mestiri v. Mestiri 2020 ONSC 3620 defined a “chasing order” as an ex post facto custody order that serves as a pre-emptive legal declaration sought in the jurisdiction where the child was habitually resident before the wrongful removal or retention. This order declares the removal or retention of the child as wrongful under the terms of the Hague Convention, reinforcing the applicant’s position in a subsequent legal proceeding in the state where the child is being held.
Under Articles 14 and 15 of the Hague Convention, the Ontario courts possess jurisdiction to issue a chasing order. Article 14 allows judicial or administrative authorities in the requested state to consider the law and decisions of the child’s habitual residence directly, streamlining the process for determining wrongful removal or retention. Article 15 enables these authorities to request the applicant to obtain a decision from the child’s habitual residence affirming the wrongful nature of the removal or retention, further facilitating the return order.
A chasing order provides clarity to the court in the requested state (i.e. where the child is being held), affirming the applicant’s position on the wrongful removal and retention. This pre-emptive declaration minimizes delays that may arise from belated requests for such declarations during Hague Convention proceedings. In cases where judges in the requested state may hesitate to order the return of the child if the legal status in the originating state is unclear, a chasing order from the home jurisdiction can alleviate these apprehensions. It assures the judge that due process has been followed in confirming the wrongful nature of the removal or retention.
Securing a chasing order in the requesting state not only supports the return order, but also establishes a legal framework for subsequent custody proceedings upon the child’s return. A chasing order also aids in enforcing the return order once the child is back in the jurisdiction of habitual residence. It provides a basis for legal recourse should there be any challenges or breaches of the return order, thereby safeguarding the rights and interests of all parties involved.
In essence, a chasing order under the Hague Convention serves as a strategic legal tool to reinforce applications for the prompt return of wrongfully removed or retained children. It not only supports the expeditious resolution of international child abduction cases, but also upholds the principles of jurisdictional integrity and child welfare embedded within the Hague Convention framework. By clarifying the wrongful nature of removals or retentions and pre-emptively addressing legal hurdles, chasing orders play a crucial role in ensuring compliance and swift justice in cross-border custody disputes.
CASE LINK: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc3620/2020onsc3620.html?resultId=30ade52d3cad4e039a49119758ea1872&searchId=2025-03-01T20:46:54:974/79c2cc62da6b4d039adcf5413c64fb1c and https://www.canlii.org/en/on/onsc/doc/2025/2025onsc603/2025onsc603.html
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