An unfortunate reality of divorce and separation involving children is that children are sometimes abducted by one of the parents. The police and courts are equipped to deal with this when it happens entirely within Canada’s borders, but things are more complicated with cross-border abductions. In cases of cross-border abductions, countries who are party to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”, can rely on the treaty to grant court orders to return children home to their “habitual residence.” However, the Hague Convention failed to define what a “habitual residence” is. The Supreme Court of Canada weighed in on its meaning in a recent decision.

The abduction

The mother and father were married in Ontario and moved to Germany in 2001. It was in Germany where their two children were born in 2002 and 2005. By 2013/14 the children were struggling in school. The father gave his time-limited consent for them to move with their mother to Ontario so they could attend school there. After the mother and children moved, the father began to worry that the mother would not return to Germany at the end of the school year. He brought an action under the Hague Convention for an order to have the children returned to Germany. His applications were unsuccessful in Germany, so he brought a similar action in Ontario.

Lower court decisions

The case was first heard before the Ontario Superior Court of Justice where the trial judge ordered the children be returned to Germany. However, the trial judge’s decision was overturned at Divisional Court. The Ontario Court of Appeal ruled in favour of the father, finding the children were habitually resident in Germany, ordering them to be returned. In appealing to the Supreme Court of Canada, the court was asked to determine if the children, were in fact, “habitually resident” in Germany or Ontario for the purposes of the Hague Convention. We blogged about the case in the lower courts, which you can read here if you like.

The Supreme Court’s analysis

The court began by noting the goals of the Hague Convention, writing it is “aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence.” Essentially, the Hague Convention seeks to restore the status quo which existed prior to the abduction, depriving the “wrongful” parent of any advantage they may gain by abducting a child.

The court found there to be three possible approaches to determining habitual residence. The first is a parental intention approach, the second is a child-centered approach, and the third is a hybrid approach. In this case, the children had wanted to stay in Ontario, creating a conflict between the wishes of the father and those of the children.

Canada has historically relied on the parental intentional approach, which means that time-limited travel cannot change a child’s habitual residence. However, the trend of jurisprudence around the Hague Convention in other parts of the world has been to adopt a hybrid approach, in which no single factor dominates the analysis. The circumstances of the parents are taken into consideration, as are the wishes of the children. Specifically, the courts should consider the children’s links to each country as well as the circumstances around their move.  The court wrote the hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions.”

The court concluded that the hybrid approach should be adopted in Canada, writing “the clear trend is to rejection of the parental intention approach and to adoption of the hybrid approach. Recent decisions from the European Union, the United Kingdom, Australia, New Zealand, and the United States endorse the hybrid approach.” The court explained that the hybrid approach has been followed as of late because it “best fulfills the goals of prompt return: (1) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, (2) encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and (3) protecting the child from the harmful effects of wrongful removal or retention.”

In this case, custody of the children had been granted to the mother by a German court in 2017, making the court’s decision moot. That said, the court did determine that the hybrid approach led to the children being habitual residents of Germany, and that they should have been returned there.

Jason P. Howie has over 25 years of family law experience. In that time, he and our team have seen nearly every type of family law situation. We take a calm, rational approach to matters of separation, divorce, and child custody & access. Our clients benefit from reliable, well-informed recommendations on how to proceed with their issues with lawyers who always have the most favourable outcome for our clients in mind. Please call us at 519-973-1500 or reach us online to talk today.