Custody & Access
The Habitual Residence of a Child
In the recent decision in Balev v Baggott, 2016 ONSC 5, the Ontario court had the opportunity to review the principles used to determine the habitual residence of a child.
In this case, the husband and wife were married in Toronto in 2000. In 2001, they moved to Germany where their two children were born. The children spent the majority of their lives living in Germany. The parents and both children are Canadian citizens. The parents separated in 2013 and they agreed that the mother would take the children to Canada where they would attend school until August 15, 2014. The father signed a letter confirming his consent to the move.
In 2014, the father revoked his consent and commenced a Hague Convention application in Germany, alleging that the mother had abducted the children. The application was filed in St. Catharines and the application judge made an order concluding that the habitual residence of the children was Germany, citing a principle found in case law which held that a parent cannot unilaterally change the habitual residence of a child without the express or implied consent of the other parent and that to do so would be wrongful detention.
The application judge found that the mother had therefore wrongly detained the children in Ontario and ordered the children returned to Germany.
The mother appealed the decision to the Superior Court.
The Superior Court found that the children had not been wrongly removed from Germany because the father was aware of the removal and had given his consent. The father could not revoke his consent and as such, the children’s habitual residence could be determined on August 15, 2014.
The principles used to determine ‘habitual residence’ are set out in the case of Korutowska-Wooff v Wooff:
- 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).
Justice Marrocco found that the children had become integrated into their community in Ontario and that there was enough evidence to support a conclusion that the children’s habitual residence had changed from Germany to Ontario during the consensual period. The Hague Application was dismissed and Justice Marrocco ordered that the custody rights of the children should be determined by the Ontario courts.
If you have questions about child custody or abduction, please contact Jason P. Howie, online or at 519.973.1500.
To read the full decision, click here.