What happens when one parent wrongfully retains or removes a child from their country of “habitual residence” (HR)? Children suffer in the form of psychological trauma associated with a loss of contact with the other parent, loss of social and cultural ties, loss of familiarity and comfortability with their environment, loss of language, and more.
The Hague Convention was created to rectify the injustice caused by international child abduction, whereby one parent has wrongfully retained or removed their child in another country. The Hague Convention is an international agreement signed by over 100 countries and is implemented in Ontario by s.46(2) of the Children’s Law Reform Act 1990. Its overarching aim is to return a child to the country in which they are classified as “habitually resident” so that matters of welfare can be dealt with in the most appropriate jurisdiction. Importantly, a return order is not an access/parenting order, it is simply an order restoring the status quo prior to the wrongful removal or retention.
The benefits of a return order are threefold:
1. To protect children against the harms caused by wrongful retention/and or removal.
2. To deter parents from engaging in child abduction as an attempt to establish new domiciles.
3. To resolve access and parenting disputes efficiently by establishing the appropriate forum.
The question of “How are the courts to determine the “Habitual Residence” of a child?”, a requirement for an application under Article 3 of the Hague Convention for a return order, was asked and answered in the case of Office of The Children’s Lawyer v. Balev (2018 SCC).
Facts: A couple married in Ontario in 2000, and subsequently moved to Germany in 2001 where they acquired permanent resident status and eventually had two children. When the children began struggling in school, the parties agreed that the mother would temporarily take them to Canada to enroll in school for the 2013/14 year. Upon suspicion that the mother had no intention of returning to Germany, the father commenced an application for the return of the children under the Hague Convention based on “wrongful retention”, which was triggered once the consented temporary period elapsed.
How is “Habitual Residence” determined?
A hybrid approach, focusing on the child’s life immediately prior to the removal or retention, is used to determine HR. A judge will consider the entirety of circumstances relative to both the child’s life before and after removal and the circumstances of the move itself. A non-exhaustive list of factors includes the duration, regularity, conditions and reasons for the child’s stay, the child’s nationality, age, developmental stage, the child’s primary caregiver, and who looks after the child. The parents’ circumstances are also considered, particularly where property has been purchased/leased. Importantly, no single factor is determinative; each case is unique and requires an individual assessment.
It is important to safeguard children’s interests in circumstances of access/parenting disputes and to know how the court will determine a child’s “Habitual Residence” when one party has wrongfully removed or retained the child(ren) in another residence. A hybrid approach ensures the benefits of a return order, namely the protection of children against the harms of child abduction, the deterrence of parental manipulation of a child’s habitual residence and the encouragement of efficient dispute resolution by adjudicating in the proper forum. This approach facilitates the ultimate goal of the Hague Convention: a prompt return of the child.
Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (CanLII), [2018] 1 SCR 398
