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CUSTODY AND ACCESS - Considerations - Child’s preference - Hague Convention - Interpretation

Friday, April 20, 2018 @ 2:56 PM  


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The Office of the Children’s Lawyer (Office) appealed from the Ontario Court of Appeal decision setting aside a decision of the Ontario Divisional Court that set aside the application judge’s decision that granted the respondent father’s application for return of the children to Germany. The application judge concluded that the children’s habitual residence in Germany and thus ordered their return. Both children were born in Canada after their parents moved from Germany. The family then moved back to Germany. The Mother returned to Canada with the children to experience the Canadian school system. Fearing the non-return of the mother with the children after the school year, the father revoked his consent and brought the action under the Hague Convention concerning International Child Abduction (Hague Convention). The appeal was rendered moot because after the return of the children to Germany, the German courts granted sole custody to the mother.

HELD: A hybrid approach, which treated the circumstances of the children and the intentions of the parents as factors to be considered in achieving a just result which fulfilled the objectives of the Hague Convention, should be adopted by the Canadian courts when determining the habitual residence of children under s. 3 of the Hague Convention. This approach required an analysis of all relevant factors pertaining to the child’s situation. Many Hague Convention states had adopted the hybrid approach in their legislation, and Canada should follow the trend according to the principle of harmonization. The hybrid approach recognized that the child was the focus of the analysis but acknowledged that it could be necessary to consider parental intention in order to properly assess the child’s connections to a country. The actual situation of the child was to be evaluated with the child’s best interest in mind. In case of the child’s refusal to return under s. 13(2) of the Hague Convention, the judge should use his discretionary power to evaluate the nature and strength of the objection while also considering the child’s age and level of maturity. Decisions pertaining to the application of the Hague Convention were to be treated expeditiously by Canadian courts and steps should be taken by jurisdictions to ensure that Canada’s obligation under the Convention were respected.

Office of the Children's Lawyer v. Balev, [2018] S.C.J. No. 16, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., April 20, 2018. Digest No. TLD-April162018012SCC