Last year, we blogged about an Ontario Court of Appeal decision that ordered two children of a Canadian mother to be returned to Germany as that is where the Court deemed their habitual residence to be. This week, the mother at the center of that decision is going to the Supreme Court to have the highest court in Canada review the implications of The Hague Convention on the fate of children embroiled in international child custody disputes.

Developments Since Our Last Blog

Since the last time we explored this matter, a German court awarded the mother full custody of her two children (now 15 and 11 years old) and allowed them to return to Canada in April of this year. However, the Supreme Court has decided to proceed with the appeal regardless as it has recognized the broader implications of making a decision based on these facts. The Supreme Court’s decision could change the way in which Canadian courts determine what a child’s habitual residence is, and may ultimately result in a process that is more focused on a child’s best interests.

Best Interests of a Child

The appeal to the Supreme Court was filed by the Office of the Children’s Lawyer (OCL), the entity responsible for representing minors in court cases involving custody, access, and child protection.

In its appeal submissions, the OCL argued that the Court of Appeal’s had erred in ordering the return of the children to Germany as it had failed to consider the best interest of the two minors, who had at that point lived and gone to school in Canada for three years, and had developed friends and a support network in the community. The OCL argued:

The goal of deterring ‘abduction’ and protecting the interests of children generally was prioritized over the rights of the individual children before the courts…[a]s a result, (the children) were harmed by the operation of the very Convention that was meant to protect them. In this appeal, the OCL urges an interpretation of the Convention that is child-centric, consistent with Canada’s obligations.

In response to the OCL’s position, the Attorney General’s of Ottawa, Ontario, and British Columbia argue that the current approach in determining a child’s habitual residence already offers an “objective” guide for courts to follow, stating:

The Convention is intended to combat international child abductions, including the wrongful retention of children in foreign states and to protect children from their harmful effects,” said the submission from the federal attorney general…the prompt return of the child to the state of habitual residence best protects the interests of children by respecting rights of custody under domestic laws. The Convention is not intended to determine the custody arrangement that is in the best interests of the child.

Other legal experts warn that the child-centric approach proposed by the OCL would provide an incentive for parents to subject their children to “harmful manipulation” such as developing artificial attachments to a new environment in order to potentially influence the children’s opinion about where they live.

The Hague Convention

The mother of the children told the Toronto Star that she felt as though the four-year battle she had been involved in had focused too much on technical legal arguments and too little on what was best for her two kids.

All parties involved in this week’s appeal hope that the Supreme Court can provide more fulsome guidance on the definition of “habitual residence” under The Hague Convention. Currently, courts across Canada (and indeed, across other jurisdictions as well) have not treated this question with any consistency. Different courts have applied different interpretations to the issue of habitual residence, with some courts defining it as the last place that both parents agreed to before the removal of the child by one of the parents, and other courts basing it on the child’s best interests. It is hoped that more specific guidance from the most influential court in the country will help with this.

We will continue to follow developments in this case and will blog further as more updates become available. In the meantime, if you have questions about child custody or child abduction contact Jason P. Howie. We can help answer difficult questions such as: what is the child’s habitual residence? Does an existing custody arrangement permit relocation?  Can a relocation be blocked or disputed? We can also represent you in litigation over any of these matters. Contact us online or at 519.973.1500.