While most parents involved in separation or divorce do what they can to act in the best interests of their children, there are situations where a child is taken from their country without the consent of the other parent. Canada, which has adopted the Hague Convention’s Convention on the Civil Aspects of International Child Abduction can turn to it for guidance. But what about situations where both parents claim wrongful taking and retention of the child? That was the question recently before the Court of Appeal for Ontario.

The events leading to trial

The child was born in Toronto and was raised by both parents there until October 2018, when she was six-months-old. At this time the mother took the child to France. Four months later, in February 2019, the father traveled to France and brought the child back to Ontario. Each parent accused the other of wrongfully removing the child from either Canada or France.

The mother brought a Hague Convention application in Ontario (the Application), alleging the child was habitually resident in France when the father took her back to Canada. She asked for the court to return the child.

The application judge dismissed the mother’s application, finding the child was habitually resident in Canada up until the mother took her to France in October 2018.

What is the Habitual Residence of the child?

The application judge made extensive findings of fact, which led them to determine that until October 28, 2018, her habitual residence was Canada. The application judge applied the hybrid approach to determining the answer to this, an approach set out by the Supreme Court of Canada, which examines a number of relative factors. We explained these factors in a previous blog post, explaining the approach’s consideration not only of the intention of the parents, but also the child’s links and circumstances to each country and the circumstances around their removal from it. These circumstances can 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.”

After looking at the facts of the case, the court agreed with the application judge that the parents attempted to make a home in Canada, including applying for permanent residency. Up until she was removed from the country, the child’s life was in Canada. The mother’s decision to take the child to France for that four-month period did not negate the six months she spent living here. As a result of the child not legally being in France, her removal by the father was not seen as unlawful by the court.

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