Supreme Court of Canada Decides Which Country Children Should Reside In
In a recent case in which a separating couple disagreed on the future residency of their children, the Supreme Court has since ruled in favour of Canadian residency. The facts of the case concerned the father, who is of German citizenship, wishing to take the children back to Germany where they had been raised. The mother, a Canadian citizen, conversely wished to have the children remain with her in Ottawa, Ontario.
In determining their decision, the Supreme Court adopted what is known as a ‘hybrid-model’ wherein it relies on both the parental intention and circumstances surrounding the children’s daily lives; thus providing a new opportunity to approach the existing concept of ‘habitual residence’. Determining habitual residence under the Convention on the Civil Aspects of Child Abduction – aka the Hague Convention – was the starting point for the court to determine if the children belonged in Germany or Canada.
[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]
The facts indicated the couple lived in Germany since their marriage in 2001 up until their move to Canada in 2017 with the intention to run a business in Ottawa. Despite the children adapting to Canadian life through school enrollments and friendships made, the parents were unsure how long their residency in Canada was to last.
After the separation, the father applied under the Hague Convention to take the children back to Germany, of which Superior Court Justice Korpan refused. The father appealed and the Appeal Court uphold Justice Korpan’s application of the hybrid-model under Balev in accordance with the children’s circumstances in Canada at this time. The Court stated:
A child’s views and preferences may be relevant to the concerns that animate the hybrid approach. As Balev teaches, at para. 43, the focus of the hybrid approach is the child’s links to and circumstances in the two countries and the circumstances of the move between those two countries. A child’s views and preferences may shed light on their links to a particular country or their circumstances in that country. For instance, if a child wishes to remain in country A because the child has made friends and social connections in country A, the child’s preference to remain in that country provides evidence of the strength of the child’s friendships and social connections, a relevant link to country A. [63]
In other words, the judgement states that although the children had spent longer portions of their life in Germany, the circumstances they have undertaken in Canada are much more immediate and important.
