Determining issue surrounding child custody and access can be difficult even if the parents live in the same city. These difficulties can be compounded when the parents live far away, or in separate countries. The Supreme Court of Canada established a hybrid approach to determining the “habitual residence” of children in a 2018 decision. A recent decision from the Court of Appeal for Ontario serves as a great example of how this approach is being applied in Ontario courts.

A tale of two countries

The parents lived in Germany from 2001 until 2017. During this time they raised four children, who followed them to Ontario. It was only after the move to Ontario that the couple separated. Following their separation the father wanted to return to Germany with the children, while the mother wanted the children to reside with her in Ontario.

The father originally brought an application under the Convention on the Civil Aspects of International Child Abduction,Can. T.S. 1983 No. 35 (“Hague Convention”). The application judge ruled in favour of the mother. The father appealed the decision.

The old vs the new

Traditionally, Ontario courts had used what was known as a parental intention model in determining the habitual residence of children. This model looks at the intention the parents had in determining where children live. For example, a trip abroad, even if it’s for an extended period of time (such as for school), would not mean that the parents intend to change the habitual residence of a child.

Under the hybrid approach established by the Supreme Court, courts can look at more than just the intention parents had. They can look at all relevant considerations presented by the facts. In its decision, the court in this case summarized the hybrid approach, stating,

“The aim of the hybrid approach is to determine 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’: at para. 43. To determine the focal point of the child’s life, the majority required judges to consider the following three kinds of links and circumstances:

1)   The child’s links to and circumstances in country A;

2)   The circumstances of the child’s move from country A to country B; and,

3)   The child’s links to and circumstances in country B.

“The majority went on to outline a number of relevant factors courts may consider in assessing these three kinds of links and circumstances. Considerations include the child’s nationality and ‘the duration, regularity, conditions and reasons for the [child’s] stay,’ along with the circumstances of the parents and parental intention: at paras. 44-45. However, the list of relevant factors is not closed and the application judge must consider the ‘entirety of the child’s situation’: at para. 47. The child is the focus of the analysis and parental intention is only relevant as a tool to assess the child’s connections to a given country: at para. 68.

In this case, the court determined that the prior judge had properly applied they hybrid approach, particularly in limiting the desire of the children to move to Germany. While that is an important factor, it is not the only factor the courts should consider.

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