A recent decision from the Supreme Court of Canada hones in on a narrow-but-important issue that arises in parental abduction across international borders – meaning situations where one parent removes a child to another country over the objection of the other, and in contravention of existing custody/access arrangements in force at the time.
In Office of the Children’s Lawyer v. Balev the crux of the case was whether the Ontario court had jurisdiction to order the children returned to their father in Germany, even though they were happily living with the mother in Ontario. The Supreme Court of Canada introduced the factual narrative of the case this way:
The story begins in Germany, where the family — a father, a mother, and two children, all citizens of Canada — were living. Because the children were struggling in school, the parents decided that the mother should take the children to Canada for 16 months to experience the Canadian school system. During that period, the father [suspecting the children would not be returned] purported to revoke his consent and brought an action under the Hague Convention for an order that the children be returned. While he pursued remedies in the German courts — unsuccessfully — the period of consent expired and the mother remained in Canada with the children. After the father resumed the application, a judge of the Ontario Superior Court of Justice ordered that the children be returned to Germany. The Divisional Court reversed this decision [on later appeal]. The Court of Appeal reinstated it. That decision was appealed to this Court.
From these facts, the legal issue arose as to whether the children in this scenario were “habitually resident” in Ontario for the purposes of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). If so, the Ontario court could grant an order in the father’s favour to have the children returned. Unfortunately, the term “habitually resident” is not defined in the Convention itself, although it has been considered by the courts of other subscribing states around the world.
In considering the matter afresh after several levels of appeal, the Supreme Court first noted the two main goals of the Hague Convention, which are:
- Enforcing parents’ custody rights; and
- Ensuring the prompt return of children to their “habitual residence” where they have been wrongfully-removed to or wrongfully-retained elsewhere.
The Court added that a determination under the Convention is not a custody order, but merely a mechanism for restoring the status quo.
The concept of a “habitual residence” could be considered either from the perspective of the parents, or from that of the child, the Court found. Historically in Canada, it has typically been the parents’ intention (rather than the child’s level of acclimatization and wishes) that governs the issue of where the child lives. Nonetheless, the Court concluded that a “hybrid” approach was more appropriate, meaning one that focuses on relevant considerations that arise from the facts of the specific case. That hybrid approach requires a court to look at:
- The child’s links to country A and overall circumstances;
- The circumstances of the child’s move from country A to country B; and
- The child’s links to and circumstances in country B.
Pertinent considerations include the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis.
With that said, the Hague Convention does include an exception to the general rule that a wrongfully-removed or retrained child must be returned to his or her country of habitual residence in cases where:
- The child has reached an appropriate age and degree of maturity at which his or her views can be taken into account, and
- the child objects to return.
The Court concluded that these factors call for a straightforward assessment by the court.
In the end, the described hybrid approach to the concept of “habitual residence” best adheres to the principles that inform the rulings from other countries on this point, not to mention the overall intentions and goals of the Hague Convention itself. These goals all have a harmonizing purpose that has been agreed-to by its contracting member states.
Having looked at the background legal principles, the Court resumed its review of the facts even though the issue was moot. (In 2017 a German court had granted the mother custody and they had been returned to Ontario). It vindicated the father nonetheless, finding that an earlier court was correct in declaring the children were “habitually resident” in Germany and should have been returned there.
For the full text of the decision, see: