In Balev v. Baggott, the Ontario Court of Appeal recently reversed a Divisional Court decision we previously blogged about which had found that a child’s habitual residence was in Ontario.

The Court of Appeal instead noted that the original decision was contrary to the purposes of the Hague Convention, and that the Divisional Court had erred in concluding that the habitual residence of the children had changed by the time their mother (who had travelled to Ontario from Germany with consent to remove the children for a short time only) ultimately refused to return to Germany. The Court ordered the children be returned to Germany within two months of  it’s decision.

The Marriage

Both parents in question are Canadian citizens. They married in Toronto in 2000, and in 2001 moved to Germany, ultimately obtaining permanent resident status there. The two children were both born in Germany, in 2002 and 2005, respectively. Despite their place of birth, the children are Canadian citizens only.

The father works in Germany and lives in the home the parties purchased in 2008, and in which the family resided prior to the parent’s separation in 2011.

The children had lived and attended school in Germany since their birth, except for two short periods of time in 2006, and in 2010/2011 when first one, and later both children, attended school in St. Catharines, Ontario.

The Return to Canada

In April 2013, the parties agreed that the mother would temporarily take the children back to Canada to attend school due to difficulties the children were having with school in Germany. The father signed a “Consent Letter for Children Travelling Abroad” confirming his consent for the children to return to Canada between July 2013 and August 2014.

On April 2, 2013 the father signed a second, notarized letter transferring physical custody to the mother for the relevant period of time.  He claimed he only agreed to this temporary change in custody because the mother had insisted that it was necessary in order to enroll the children in the Ontario school system.

The mother and children subsequently left Germany, and arrived in Ontario on April 19, 2013. All three travelled with limited baggage and left most of their belongings in their German home. The children believed they were coming to Canada for a limited time.

The children and mother never returned to Germany.

In March 2014, the father attempted to revoke his consent for the children leaving Germany. In June of that year, just short of the expiration of the original consent in August 2014, he filed a Hague Convention application at the Superior Court of Justice, Family Court Branch in St. Catharines, requesting an order returning the children to Germany.

The father also sought relief in Germany, initially bringing a custody application which was denied on the ground that the German courts lacked jurisdiction since the children were not German citizens, and were also no longer resident in Germany. He then commenced a Hague Convention application in Germany. Two levels of court indicated that the  application would not succeed as the children were no longer habitually resident in Germany. The father withdrew the application, relying instead on the application he had commenced in St. Catharines.

The father visited the children in Canada in November 2013, and in March 2015, for periods of 10 days each. He has also maintained regular weekly contact via Skype and through phone calls.

Purposes of the Hague Convention

Importantly, a judge deciding a Hague Convention application is neither determining custody nor deciding what is in the best interests of the child. Rather, the judge is making a decision on whether a child has been abducted and/or “wrongfully retained” as defined by the Convention. If the answer is “YES”, and if no exception is contemplated by the Convention, then the child must be returned to the place of their habitual residence.

The fundamental underlying purpose of the Convention is to protect children from the effects of removal or retention and to establish procedures to ensure their prompt return.

There is a presumption of that a return will be ordered. Where such an order is made, it is up to the courts in the requesting jurisdiction (i.e- the jurisdiction where the child is to be returned to) to determine the issue of custody.

Habitual Residence of a Child

In order to determine whether the mother’s retention of the children in this case breached the father’s custody rights under Article 3 of the Convention, the court must identify what the habitual residence of a child was immediately prior to the retention.

In Ontario, habitual residence of a child is defined in Korutowska-Wooff v. Wooff , in which the Court of Appeal adopted the following test to determine habitual residence:

  • the question of habitual residence is a question of fact to be decided based on all of the circumstances;
  • the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;
  • a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
  • a child’s habitual residence is tied to that of the child’s custodian(s).

In this case, the Court of Appeal noted that in applying the habitual residence test, it is clear that prior to the children’s arrival in Canada in April 2013, their habitual residence had been Germany.

The critical question therefore became where was the habitual residence of the children immediately prior to the father’s original time-limited consent in August 2014? Had anything changed the habitual residence from Germany to Ontario in that period of less than a year?

If so, the Convention would not apply as there would be no wrongful retention and, therefore, no basis for returning the children.

Unilateral Change of Habitual Residence of a Child

The original Divisional Court trial judge correctly recognized well-established case law indicating that one parent cannot unilaterally change a child’s habitual residence under the Convention. The original judge found that the father remained a joint custodial parent while the children were in Ontario, despite his apparent transfer of custody in the “time-limited agreement”. The mother could therefore, not unilaterally change the habitual residence of the children between July 2013 and August 2014.

However, while the mother could not do this, the original trial judge accepted the argument that the habitual residence could change due to the joint agreement that the children spend one year in Canada.

The Court of Appeal disagreed with this finding, citing a line of cases wherein Ontario courts have uniformly found that a parent’s consent to a “time-limited stay” does not change a child’s habitual residence. The Court of Appeal recognized that such time limited stays are now common, particularly if done for educational purposes, citing a number of cases, including an American case which states:

The academic year abroad has become a familiar phenomenon in which thousands of families across the globe participate every year….Children who spend time studying abroad in this manner are obviously expected to form close cultural and personal ties to the countries they visit – that’s the whole point of sending them there for a year rather than simply for a brief tourist visit. Yet the ordinary expectation – shared by both parents and children – is that, upon completion of the year, the students will resume residence in their home countries. If this were not the expectation, one would find few parents willing to let their children have these valuable experiences. [emphasis added]

The Court of Appeal agreed with the father’s argument that to alter a child’s habitual residence where there is a time-limited consent by the other parent would “effectively gut time-limited consent of any meaning”.

The Court of Appeal was careful to note that it did not wish to eliminate the possibility that there may be instances in which a time-limited stay becomes so long it is a time-limited stay in name only, and the child’s habitual residence does change.

The question of habitual residence is factual and depends very much on the specific circumstances of each case.

Here, there was undisputed evidence that the mother had come to Canada with limited resources, leaving the bulk of everyone’s belongings in Germany. Additionally, the OCL had testified that the children understood that they were coming to Canada for a vacation only, and that it only became apparent after their arrival here that this was going to be a permanent move.

Settling In” of the Children

The Court of Appeal recognized the significant line of cases stating that consideration must be paid to how children have acclimatized or settled into their new environment in making determinations about habitual residence. However, the Court noted that the Supreme Court of Canada has found that evidence of “settling in” is irrelevant if an application is brought for a return of children within one year of their wrongful removal (as it had been here).

Wrongful Retention

The Court of Appeal found that there was “ample evidence” to support a finding that the mother’s refusal to return to Germany deprived the father of his custodial rights, that he was exercising his custody rights at the time the children were retained, that he had consented to transfer custody for the sole purpose of enrolling the children in a Canadian school, and that he would have exercised custodial rights had the children not been retained in Canada.

Views of the Children

The Convention provides that even if retention is found to be wrongful, the court may refuse to order a return of the children if the children object to being returned, and are mature enough to do so.

In support of her position to stay in Canada, the mother relied strongly on what she claimed were the views of the children, among which were the opinions that there was “too much homework in Germany”, that they would lose Canadian friends, their dog, and their statements that “Canada feels like home”. These objections were ultimately found to be neither “substantial” nor carry sufficient “strength of feeling” to be considered an expression of a preference of Canada over Germany.

Ultimate Findings of Court of Appeal

The Court of Appeal ultimately found that the children had habitually resided in Germany immediately prior to their wrongful retention by their mother on August 15, 2014 (after which the retention breached the father’s custody rights which he was exercising at the time of the retention). None of the exceptions under the Convention applied, and therefore, the children must be returned to Germany.

The Court of Appeal noted its “considerable sympathy” for the mother, who obviously feels strongly that it is in her children’s best interests to stay in Canada. The Court additionally recognized that, at the time of its decision, the children had been in Canada for more than three years and that moving back to Germany would be difficult. The Court noted that such realities were likely a “significant factor” in the Divisional Court’s original finding that the children’s habitual residence was actually Ontario.

Ultimately, however, the Court stated that:

It is important to remember, however, that although this case involves the interests and needs of these two young children, it raises legal issues that transcend their interests and that affect the interests of countless other children and their parents. It is also important to remember that the mother’s actions were in direct violation of the father’s custodial rights.

In my respectful opinion, the Divisional Court’s decision would, if upheld, undermine the purpose and proper operation of the Hague Convention. To find that a child’s habitual residence can be changed by the unilateral actions of one parent during the period of a time-limited consensual absence undermines the purpose and efficacy of a carefully crafted scheme to deal with child abduction and wrongful retention. It renders time-limited travel consents essentially meaningless, and would allow one parent to lay the foundation for child abduction by obtaining a defined, temporary consent of the other parent to travel with the child. [emphasis added]

The Court of Appeal ultimately ordered that the children must be returned to Germany by October 15, 2016, that the mother is permitted to return to Germany and reside with the children there, and that the father must provide “suitable housing for the mother and children that approximates the accommodation they enjoyed prior to their departure for Canada”.

If you have questions about child custody or abduction, please contact Jason P. Howie, online or at 519.973.1500. We can help answer questions such as:  Does the existing custody arrangement allow for relocation?  What is the motivation for relocation?  Can the relocation be blocked or disputed?  At what point do the wishes of the children themselves become a determining factor?