The Supreme Court of Canada didn’t yet the year come to a close without issuing an important decision in family law. The abduction of children by parents is a devastating occurrence. When abductions happen within Canada’s borders, our own law enforcement and courts have the jurisdiction to deal with it. This can become more difficult with cross-border abductions. Fortunately, Canada is one of many countries party to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hauge Convention”). The Hague Convention empowers courts to return children to their “habitual residence” following an abduction. However, as we sometimes see in the law, the devil is in the details, and the definition of “habitual residence” has not always been clear, especially since the Hague Convention does not define it. In a recent decision, the Supreme Court of Canada issued its ruling on the definition of a “habitual residence.”

The background

The parents involved in the case moved to Germany in 2001 after getting married in Ontario. They had two children, both born in Germany in 2002 and 2005 respectively. By the time they were 11 and 9 years old, they had begun to struggle in school. It was decided that the mother would take the children to Ontario to attend school. The plan was for the mother to return to Germany with the children following the school year. However, the father began to doubt that the mother would comply with their agreement. As a result, he turned to the Hague Convention, seeking an order for the children to be returned to Germany. After not having any success in Germany courts, he applied in Ontario.

The case works its way through the courts  

The father was successful before the Ontario Superior Court of Justice, with the judge ordering the children to be returned to Germany. The decision was overturned at the Divisional Court level before reaching the Ontario Court of Appeal, where the father received another ruling in his favour. This decision was appealed, and the Supreme Court of Canada was asked to determine which country the children were “habitual residents” of – Germany or Canada.

At the Supreme Court of Canada

The Hague Convention’s goal is to put children back into their loves as they existed before the abduction. It states it is “aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence.” The intent is to not allow a parent to benefit from the abduction of a child.

In determining the best way to approach the definition of a habitual residence, the court looked at three possibilities. The first is a “parental intention” approach, which means that travel with one parent cannot result in a change to the child’s habitual residence. The second approach is a “child-centered” approach, which looks at what the children want. In this case, these two approaches were at odds. The intention of the parents at the outset was for the children to return to Germany. However, even with the mother’s actions, the children stated they wanted to remain in Ontario. This type of situation isn’t uncommon, and is what led to the third approach, which is a hybrid approach.

The hybrid approach has been adopted by other countries that have signed onto the Hague Convention. It does not rely on a single factor to dominate the analysis, instead factoring in the wishes of the children. The wishes of the parents, the links the children have to the countries, and the circumstances around the move. The Supreme Court of Canada said the hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions.”

The Supreme Court of Canada found that Canada should adopt the hybrid approach, following the lead of others that have done so. The court wrote, “the clear trend is to rejection of the parental intention approach and to adoption of the hybrid approach. Recent decisions from the European Union, the United Kingdom, Australia, New Zealand, and the United States endorse the hybrid approach.”

The court also noted the hybrid approach “best fulfills the goals of prompt return: (1) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, (2) encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and (3) protecting the child from the harmful effects of wrongful removal or retention.”

After applying the hybrid approach, the courts found the children’s habitual residence was Germany. However, the point was moot since the mother had been awarded custody by a German court in 2017.

At Borden Family Law, our experienced and compassionate team of family lawyers help our clients deal with the difficult and nuanced situations that arise in family law issues, including child custody and access. We understand that the stress and financial impact of family law matters can be difficult for our clients. We help our clients through this by working to determine what is best for children in a matter, and focusing on that throughout our work on an issue. Please call us at 905.576.6090or reach us online to see how we can help you today. Please remember to ask about our flat fees.