COUNSELLOR’S CORNER: THE HAGUE CONVENTION EDITION

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The Hague convention between Japan and Canada

By Takanori Kuge (JSS Counsellor)

 

The number of international marriages has increased in recent years even though many Japanese/non-Japanese mixed marriages have ended up in divorce. There is no easy divorce even when nationality is not factored into the problem. Understandably, divorce between international couples becomes even more complicated when differences of law, procedure, culture, and customs regarding divorce in each country are taken into account.

There are many Japanese people in Toronto who have non-Japanese spouses whose marriage ends in divorce.  JSS deals with as many as 30 to 40 cases of these international divorces yearly.

One of the more serious issues associated with these divorces is international child abduction. In order to deal with the issue, in 1980 a multilateral treaty called the “Hague convention “ was enacted. As of June, 2013, ninety countries (including the United States of America, Canada, Austria, and all of EU member nations) had signed on. Since Russia acceded to the Hague Convention on October 1, 2011, of the G-8 countries only Japan had not acceded. Meanwhile, many countries in Asia, Africa, and the Middle-East haven’t acceded.  However, South Korea put it into effect in March, 2013, and the number of signatories is rising.

Japan was long criticized for not becoming a signatory and was asked to accede under pressure from the countries of Europe and the United States. During the ordinary parliamentary session in 2013, Japan was admitted to this treaty and worked on preparing a government and ministry ordinance in order to put it into effect as early as possible. On Jan 24, 2014,during a cabinet, meeting the Japanese Government signed the Hague Convention and on April 1st, 2014. The treaty will duly take effect.

The official name for the Hague Convention is the “Convention on the Civil Aspects of International Child Abduction.”  International child abduction refers to one parent removing their child or children (up to about 16 years old) to return to the state of his or her habitual residence, disregarding their place of legal residence and without the approval of the other parent with custody (or a joint custody) after a divorce.

With the social progression towards internationalization, in the late 20th century, the number of incidents related to international child abduction increased and became recognized as a serious problem. The Hague Convention was enacted to prevent these incidents. Under the Hague Convention, if a child or children have been removed or retained in breach of custody rights within contracting states the child or children are obligated to be returned promptly to the children’s habitual residence where the children were in residence before they were taken.

International marriage by Japanese Canadians and Japanese immigrants in Canada is higher than that of other race by a large margin (as high as 75 % according to Canadian census).

The statistics from the last 10 years show that 70% of those who immigrate to Canada from Japan are women (about 1300 to 1400 people every year) and most come for the purpose of marriage.

Because there are no accurate statistics that show the divorce rate of Japanese-Canadian couples we do not know the exact rate but it is assumed to be very high. If a couple is childless then divorce is relatively easy. For couples with a child or children their international divorce is complicated by the Hague Convention in addition to the differences of laws, culture, and custom related to custody. There are not many people who would at the time of marriage predict that they would eventually divorce. However, considering the high divorce rate in Canada, it seems necessary to consider the answer to such questions as “ If we were married and had a child and later decided to divorce what would I do? What would happen to me? What would I want to do?” or “What would my partner want to do.”

In Japan, an application for the return of children under this treaty will be accepted at the “Central Authority” established by the Minister of Foreign Affairs. Actual operations will be carried out by the Foreign Ministry mainly at the Hague Convention room located at the Foreign Policy Bureau of the Ministry of Foreign Affairs.

See the Foreign Ministry website below for more information about the Hague Convention.

http://www.mofa.go.jp/mofaj/gaiko/hague/

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