When parents display separate intentions with respect to which country their children should live in, courts must often make a determination following an application under the Convention on the Civil Aspects of International Child Abduction, otherwise known as the “Hague Convention” (Convention). If both countries in question are parties to the Convention, the parent seeking to have their child returned from the other party country will make an application and a court in the country where the children are located will make a determination based on the child’s place of habitual residence.
Previously, the model used in Ontario to determine habitual residence was based solely on the intentions of the parents. In a decision last year called Office of the Children’s Lawyer v. Balev, the SCC adopted a hybrid approach to determining habitual residence. In that decision, the SCC rejected the traditional Ontario model and considered both parental intention along with the circumstances and preferences of the children.
A recent decision of the Ontario Court of Appeal (ONCA) is the first Ontario appellate decision to apply the new hybrid model.
Facts of the Case
The parents were married in 2001 and had four children, between 9 and 15 years of age. The father was a German citizen and the mother was Canadian. The family had resided in Germany almost exclusively for the duration of the marriage. The children were dual citizens of Germany and Canada but held only German passports.
In August of 2017, the couple relocated to Ontario with their children. Once here, they purchased a home, cars and invested in significant home renovations. They had also brought most of their belongings with them from Germany. The father did not have a work visa, and the children were issued visas for one year, expiring in September 2018. The parents had not settled on how long they planned to remain in Ontario, but the children quickly adapted, and successfully completed the 2017-2018 school year. They also developed close ties with their mother’s extended family in Ontario.
The couple separated in March of 2018, and the father made plans to return to Germany. In July, the mother filed for divorce in Ontario and sought to retain custody of the children. In August, the father filed a Hague Application for the return of his children to Germany.
The Trial Decision
The judge ordered the involvement of the Office of the Children’s Lawyer (OCL) to represent the children and provide the court with their views and preferences. The OCL counsel conducted extensive interviews with all four children and reported that the oldest three expressed a desire to remain in Ontario, while the youngest remained neutral and did not claim a preference.
When determining habitual residence, the trial judge considered both parental intention and the wishes of the children, as established by the SCC. She found that the parents had not moved to Ontario with a set intention to return to Germany. They had enrolled the children in school for the 2018-2019, spent considerable money on renovating a home, and sought health care coverage for the children. With respect to the children, while they had been in Germany much longer, their time in Ontario was extensive and also more immediate. They had adapted well and had become very close to their mother’s family. She also acknowledged that the three oldest children had expressed a desire to remain in Ontario. On the balance of both factors, the judge determined that their habitual residence was in Ontario, and dismissed the father’s application.
The Court of Appeal
In Balev, the SCC explained the reasoning behind the hybrid approach as one which allowed a court to consider the “focal point of the child’s life – the family and social environment in which its life has developed – immediately prior to the removal or retention”. To do this, the court found that they must examine the following three factors:
- The child’s links to and circumstances in country A;
- The circumstances of the child’s move from country A to country B; and,
- The child’s links to and circumstances in country B.
If a court finds that a child was habitually resident in the country in which the applicant is based, they generally must order that the child be returned. However, the Convention sets out five exceptions which the SCC summarized as follows:
- The parent seeking return was not exercising custody or consented to the removal or retention;
- There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation;
- The child of sufficient age and maturity objects to being returned;
- The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state; and
- The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment.
In examining the trial judge’s decision, the ONCA found no errors of reasoning or fact. The judge had correctly set out and applied the framework from Belev, and she had clearly considered the children’s preferences in light of their circumstances and links to Ontario. The father’s appeal was dismissed.
In Belev, the SCC has set a new model for considering habitual residence when deciding on Hague Applications; one in which the preferences and circumstances of the child are taken into account, along with the intentions of the parents. it is likely that the older the child is, the more weight their opinions will be given. In this case, the three oldest children were all over the age of 10. It will be interesting to see how this model is interpreted in a case where the child is considerably younger.
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