Office of the Children’s Lawyer v. Balev

Office of the Children’s Lawyer v. Balev
Collection
Supreme Court Judgments
Date
2018-04-20
Neutral citation
2018 SCC 16
Report
[2018] 1 SCR 398
Case number
37250
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Ontario
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398
Appeal Heard: November 9, 2017 Judgment Rendered: April 20, 2018 Docket: 37250
Between:
Office of the Children’s Lawyer
Appellant
and
John Paul Balev and Catharine-Rose Baggott
Respondents
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Defence for Children International-Canada and Barbra Schlifer Commemorative Clinic
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment: (paras. 1 to 91)
McLachlin C.J. (Abella, Karakatsanis, Wagner, Gascon and Brown JJ. concurring)
Joint Dissenting Reasons: (paras. 92 to 161)
Côté and Rowe JJ. (Moldaver J. concurring)
Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398
Office of the Children’s Lawyer Appellant
v.
John Paul Balev and
Catharine‑Rose Baggott Respondents
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of British Columbia,
Defence for Children International‑Canada and
Barbra Schlifer Commemorative Clinic Interveners
Indexed as: Office of the Children’s Lawyer v. Balev
2018 SCC 16
File No.: 37250.
2017: November 9; 2018: April 20.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for ontario
Family law — Custody — Wrongful removal or retention of child — Convention on the Civil Aspects of International Child Abduction — Mother of children living in Canada pursuant to a time‑limited custody agreement failing to return children to father in Germany following expiry of consent period — Retention of children triggering operation of return mechanism under Hague Convention — Whether children were “habitually resident” in Germany at time of allegedly wrongful retention — How courts should consider child’s objections to return to jurisdiction of habitual residence — Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, arts. 3, 13.
Legislation — Interpretation — Treaty implemented in domestic legislation — Convention on the Civil Aspects of International Child Abduction — Habitual residence — Different approaches to determination of “habitually resident” in Article 3 of Convention developing in international jurisprudence — Canada signatory to this Convention and to Vienna Convention on Law of Treaties — Whether Canadian courts should adopt parental intention approach, child‑centred approach or hybrid approach to consideration of habitual residence of child wrongfully removed or retained within meaning of Convention — Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, art. 3.
The respondents were married in Ontario and moved to Germany in 2001 where their two children were born in 2002 and 2005. The children struggled with school in Germany so the father gave his time‑limited consent for the children to move to Canada with the mother for the 2013‑14 school year. The children attended school in Ontario where they resided with the mother and their grandparents. Because he suspected that the mother would not return the children to Germany at the end of the school year, the father purported to revoke his consent, resumed custody proceedings in Germany, and brought an action under the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) for an order that the children be returned to Germany. After the consent agreement lapsed, and his applications in Germany were unsuccessful, the father requested that his Hague Convention application be set down for a hearing before the Ontario court.
The application judge requested that the Office of the Children’s Lawyer (“OCL”) be appointed to represent the interests of the children. She found the children to be habitually resident in Germany and ordered the return of the children. The Divisional Court allowed the mother’s appeal. The Court of Appeal allowed the father’s appeal, concluding that the children were habitually resident in Germany at the relevant time, and that there had been a wrongful retention pursuant to Article 3 of the Hague Convention. The OCL applied for leave to appeal to this Court. An application for a stay pending this appeal was dismissed. The children were ultimately returned to Germany on October 15, 2016, where the mother was awarded sole custody by the German courts. The children returned to Canada on April 5, 2017. Although the appeal is now moot, the issues raised are important, and the law on how cases such as this fall to be decided requires clarification.
Held (Moldaver, Côté and Rowe JJ. dissenting): The Court should adopt the hybrid approach to determining habitual residence under Article 3 of the Hague Convention, and a non‑technical approach to considering a child’s objection to removal under Article 13(2).
Per McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon and Brown JJ.: The Hague Convention is aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence. A return order is not a custody determination; it is simply an order designed to restore the status quo which existed before the wrongful removal or retention. The heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was “habitually resident” immediately before the removal or retention and (b) those rights were actually being exercised or would have been exercised but for the wrongful removal or retention. If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply.
Only one requirement of Article 3 is challenged in this case — whether the children were habitually resident in Germany at the time of the wrongful retention. And the only relevant exception is the children’s alleged objection to being returned to Germany. The central question here is how an application judge should determine the question of a child’s habitual residence. There are three possible approaches: the parental intention approach, the child‑centred approach, and the hybrid approach. Currently, the parental intention approach dominates Canadian jurisprudence and determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives. Under this approach, time‑limited travel to which the parents agree does not change the child’s habitual residence. The hybrid approach, however, holds that instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case. The judge considers all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B. Considerations include the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis. The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children. But, there is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child. Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all of the relevant circumstances. The hybrid approach is fact‑bound, practical, and unencumbered with rigid rules, formulas, or presumptions.
The clear trend of Hague Convention jurisprudence is to rejection of the parental intention approach and to adoption of the multi‑factored hybrid approach. The hybrid approach should be adopted in Canada because (1) the principle of harmonization supports this approach; and (2) it best conforms to the text, structure and purpose of the Hague Convention. A clear purpose of multilateral treaties is to harmonize parties’ domestic laws around agreed‑upon rules, practices, and principles. The Hague Convention was intended to establish procedures common to all the contracting states that would ensure the prompt return of children. To avoid frustrating the harmonizing purpose behind the Hague Convention, domestic courts should give serious consideration to decisions by the courts of other contracting states on its meaning and application. In the end, the best assurance of certainty lies in following the developing international jurisprudence that supports a multi‑factored hybrid approach. Furthermore, the hybrid approach 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.
Under the hybrid approach, a child’s habitual residence can change while he or she is staying with one parent under the time‑limited consent of the other. The application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement but also considers all other evidence relevant to the child’s habitual residence.
Article 13(2) is an exception to the general rule that a wrongfully removed or retained child must be returned to his or her country of habitual residence, but it should not be read so broadly that it erodes the general rule. The application judge’s discretion to refuse to return the child to the country of habitual residence arises only if the party opposing return establishes that: (1) the child has reached an appropriate age and degree of maturity at which his or her views can be taken into account, and (2) the child objects to return. Determining sufficient age and maturity in most cases is simply a matter of inference from the child’s demeanor, testimony and circumstances. The child’s objection should also be assessed in a straightforward fashion — without the imposition of formal conditions or requirements not set out in the text of the Hague Convention. In most cases, the object of Article 13(2) can be achieved by a single process in which the judge decides if the child possesses sufficient age and maturity to make his or her evidence useful, decides if the child objects to return, and, if so, exercises judicial discretion as to whether to return the child.
Finally, the time it took to bring this Hague Convention application to hearing and resolve the ensuing appeals was unacceptably long. The hardship and anxiety that such delays impose on children are exactly what the Hague Convention’s contracting parties sought to prevent by insisting on prompt return and expeditious procedures. It was up to the judicial authorities and court administrators in this case to ensure Canada lived up to its obligation under Article 11 to “act expeditiously in proceedings for the return of children”. Hague Convention proceedings should be judge‑led, not party‑driven, to ensure that they are determined expeditiously.
Per Moldaver, Côté and Rowe (dissenting): The clear purpose of the Hague Convention is the enforcement of custody rights across international borders, which supports an approach to habitual residence based on parental intention. In this case, the children were habitually resident in Germany at the time of the alleged wrongful retention in Canada because there was no shared parental intent for Canada to become the children’s habitual residence.
Under the provisions of the Hague Convention, courts presented with return applications under Article 12 must perform a two‑step analysis. First, the court must determine whether the child was removed from his or her habitual residence or retained in another country by one parent in breach of the other parent’s custody rights. Second, the court must determine whether an exception to the return order applies. The central dispute in this appeal is at the first step of the analysis: deciding where the children are habitually resident under Article 3. In most cases, the focus should be on the intentions of the parents as the key element in the analysis, not the strength of the relevant contacts between the child and the competing jurisdictions. In contrast, the hybrid approach dilutes the importance of parental intent as the primary variable in favor of a multi‑factor test. The result is an unprincipled and open‑ended approach — untethered from the text, structure, and purpose of the Hague Convention — that creates a recipe for litigation.
Where the parents have agreed in writing that a move to a new jurisdiction is meant to be temporary, then that agreement should be given decisive weight. Where shared parental intent is otherwise clear from the evidence before the application judge, it should be determinative of habitual residence, absent exceptional circumstances. Some courts have recognized a narrow exception for cases where the evidence unequivocally points to the conclusion that the child has acclimatized to the new location but this requires evidence of more than simply settling in to a new location in order for shared parental intent to be disregarded.
There are three strong indications that parental intent should be the decisive factor, as dictated by the text and structure of the Hague Convention. First, Article 12 contains two distinct provisions depending on when a Hague Convention proceeding is initiated. When proceedings have been commenced one year or more after the alleged wrongful removal or retention, a court need not order the child’s return if “it is demonstrated that the child is now settled in its new environment”. Alternatively, when proceedings are commenced within one year, the court is required to “order the return of the child forthwith”. Given this structure, it would not be proper to consider evidence of settling in when a proceeding is initiated within one year. Second, the two‑step analysis required by Article 12 differentiates the concept of habitual residence (at stage one) from evidence regarding the child’s circumstances (at stage two). Article 13(2) provides for an exception to the return order that specifically focuses on whether a child objects to a return. Incorporating considerations of this nature into the preliminary determination of habitual residence would inappropriately collapse the steps of the analysis. Third, Article 5 provides that custody rights include “the right to determine the child’s place of residence”, which suggests that parents, by virtue of their custody rights, must have some influence over where their child is deemed to be habitually resident.
The clear purpose of the Hague Convention also supports an approach based on parental intention. If respect for custody rights is the guiding purpose, it follows that parental intent should be a central focus in assessing habitual residence. Finally, policy reasons support the parental intention approach because it creates comparatively clear and certain law: absent shared parental intent, neither parent has anything to gain by abducting or retaining a child because the child’s habitual residence will remain the original country, absent exceptional circumstances. Therefore, the parental intent approach best aligns with the Hague Convention’s purposes by protecting custody rights and deterring abductions that may result from any approach that permits unilateral changes to habitual residence.
On the other hand, the hybrid approach, by incorporating other factors that could supplant parental intent into the determination of habitual residence — which effectively permits one parent to unilaterally change a child’s habitual residence without the other parent’s consent even in the face of an express agreement — blurs the distinction between custody adjudications and Hague Convention applications and undermines the Convention’s goals. Where there is unambiguous evidence of what the parents intended, the parental intent model offers a clear and predictable answer to the question of habitual residence.
Here, the relevant point in time for determining the children’s habitual residence is August 15, 2014 — the date on which the father’s period of consent expired. There is no question that the children were habitually resident in Germany prior to their trip to Canada by virtue of an express agreement indicating that the father only consented to a temporary stay in Canada. Article 13(2) should not be lightly invoked so as to systematically undermine custody rights of left‑behind parents. The application judge’s decision that the children had not expressed objections with the requisite strength of feeling is entitled to deference. As a result, there is no basis to refuse a return order after concluding that Germany was the children’s habitual residence. The appeal should be dismissed.
Cases Cited
By McLachlin C.J.
Considered: O.L. v. P.Q. (2017), C‑111/17; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1; Redmond v. Redmond, 724 F.3d 729 (2013); Punter v. Secretary for Justice, [2007] 1 N.Z.L.R. 40; Silverman v. Silverman, 338 F.3d 886 (2003); Tsai‑Yi Yang v. Fu‑Chiang Tsui, 499 F.3d 259 (2007); referred to: Thomson v. Thomson, [1994] 3 S.C.R. 551; Re B. (A Minor) (Abduction), [1994] 2 F.L.R. 249; W. (V.) v. S. (D.), [1996] 2 S.C.R. 108; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Crown Forest Industries Ltd. v. Canada, [1995] 2 S.C.R. 802; Connaught Laboratories Ltd. v. British Airways (2002), 61 O.R. (3d) 204; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; Stag Line, Limited v. Foscolo, Mango and Co., [1932] A.C. 328; Scruttons Ltd. v. Midland Silicones Ltd., [1962] A.C. 446; Air France v. Saks, 470 U.S. 392 (1985); L.K. v. Director‑General, Department of Community Services, [2009] HCA 9, 237 C.L.R. 582; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Mozes v. Mozes, 239 F.3d 1067 (2001); Gitter v. Gitter, 396 F.3d 124 (2005); R. v. Barnet London Borough Council, Ex parte Nilish Shah, [1983] 2 A.C. 309; Chan v. Chow, 2001 BCCA 276, 90 B.C.L.R. (3d) 222; Korutowska‑Wooff v. Wooff (2004), 242 D.L.R. (4th) 385; A.E.S. v. A.M.W., 2013 ABCA 133, 544 A.R. 246; Rifkin v. Peled‑Rifkin, 2017 NBCA 3, 89 R.F.L. (7th) 194; S.K. v. J.Z., 2017 SKQB 136; Monteiro v. Locke (2014), 354 Nfld. & P.E.I.R. 132; Friedrich v. Friedrich, 983 F.2d 1396 (1993); Feder v. Evans‑Feder, 63 F.3d 217 (1995); Droit de la famille — 2454, [1996] R.J.Q. 2509; Droit de la famille — 17622, 2017 QCCA 529; Jackson v. Graczyk (2006), 45 R.F.L. (6th) 43; Mercredi v. Chaffe, C‑497/10, [2010] E.C.R. I‑14358; In re R. (Children), [2015] UKSC 35, [2016] A.C. 76; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678; In re J. (A Minor) (Abduction: Custody Rights), [1990] 2 A.C. 562; Martinez v. Cahue, 826 F.3d 983 (2016); Karkkainen v. Kovalchuk, 445 F.3d 280 (2006); Ruiz v. Tenorio, 392 F.3d 1247 (2004); Barzilay v. Barzilay, 600 F.3d 912 (2010); Murphy v. Sloan, 764 F.3d 1144 (2014); Rey v. Getta, 2013 BCCA 369, 342 B.C.A.C. 30; De Silva v. Pitts, 2008 ONCA 9, 232 O.A.C. 180; Thompson v. Thompson, 2017 ABCA 299; In re M. (Abduction: Rights of Custody), [2007] UKHL 55, [2008] 1 A.C. 1288; England v. England, 234 F.3d 268 (2000); R.M. v. J.S., 2013 ABCA 441, 566 A.R. 230; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; Fothergill v. Monarch Airlines Ltd., [1981] A.C. 251; Zingre v. The Queen, [1981] 2 S.C.R. 392.
By Côté and Rowe JJ. (dissenting)
Koch v. Koch, 450 F.3d 703 (2006); Delvoye v. Lee, 329 F.3d 330 (2003); Mozes v. Mozes, 239 F.3d 1067 (2001); Gitter v. Gitter, 396 F.3d 124 (2005); Murphy v. Sloan, 764 F.3d 1144 (2014); Rey v. Getta, 2013 BCCA 369, 342 B.C.A.C. 30; Thomson v. Thomson, [1994] 3 S.C.R. 551; Mercredi v. Chaffe, C‑497/10, [2010] E.C.R. I‑14358; Punter v. Secretary for Justice, [2007] 1 N.Z.L.R. 40; Karkkainen v. Kovalchuk, 445 F.3d 280 (2006); Feder v. Evans‑Feder, 63 F.3d 217 (1995); In re R. (Children), [2015] UKSC 35, [2016] A.C. 76; Mauvais v. Herisse, 772 F.3d 6 (2014); Guzzo v. Cristofano, 719 F.3d 100 (2013); Larbie v. Larbie, 690 F.3d 295 (2012); Ruiz v. Tenorio, 392 F.3d 1247 (2004); R. v. Barnet London Borough Council, Ex parte Nilish Shah, [1983] 2 A.C. 309; Korutowska‑Wooff v. Wooff (2004), 242 D.L.R. (4th) 385; Rifkin v. Peled‑Rifkin, 2017 NBCA 3, 89 R.F.L. (7th) 194; A.E.S. v. A.M.W., 2013 ABCA 133, 544 A.R. 246; Silverman v. Silverman, 338 F.3d 886 (2003); Tsai‑Yi Yang v. Fu‑Chiang Tsui, 499 F.3d 259 (2007); Baxter v. Baxter, 423 F.3d 363 (2005); L.K. v. Director‑General, Department of Community Services, [2009] HCA 9, 237 C.L.R. 582; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 6 , 7 .
Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 46(2).
Treaties and Other International Instruments
Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, preamble, arts. 1, 2, 3, 4, 5, 11, 12, 13, 16, 19, 20.
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, arts. 8, 11.
Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, arts. 27, 31.
Authors Cited
Fernando, Michelle, and Nicola Ross. “Stifled Voices: Hearing Children’s Objections in Hague Child Abduction Convention Cases in Australia” (2018), 32 Int’l J.L. Pol’y & Fam. 93.
Gallagher, Erin. “A House Is Not (Necessarily) a Home: A Discussion of the Common Law Approach to Habitual Residence” (2015), 47 N.Y.U.J. Int’l L. & Pol. 463.
Gardiner, Richard K. Treaty Interpretation, 2nd ed. Oxford: Oxford University Press, 2015.
Greene, Anastacia M. “Seen and Not Heard?: Children’s Objections Under the Hague Convention on International Child Abduction” (2005), 13 U. Miami Int’l & Comp. L. Rev. 105.
McEleavy, Peter. “Evaluating the views of abducted children: trends in appellate case‑law” (2008), 20 C.F.L.Q. 230.
Pérez‑Vera, Elisa. “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction. Madrid: Hague Conference on Private International Law, 1981.
Schuz, Rhona. The Hague Child Abduction Convention: A Critical Analysis. Oxford: Hart Publishing, 2013.
Sullivan, Ruth. Statutory Interpretation, 3rd ed. Toronto: Irwin Law, 2016.
United Nations Children’s Fund. Implementation Handbook for the Convention on the Rights of the Child, rev. 3rd ed. by Rachel Hodgkin and Peter Newell. Geneva: United Nations Publications, 2007.
Winter, Stephen I. “Home is where the Heart is: Determining ‘Habitual Residence’ under the Hague Convention on the Civil Aspects of International Child Abduction” (2010), 33 Wash. U.J.L. & Pol’y 351.
APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Sharpe and Miller JJ.A.), 2016 ONCA 680, 133 O.R. (3d) 735, 405 D.L.R. (4th) 98, 84 R.F.L. (7th) 291, [2016] O.J. No. 4800 (QL), 2016 CarswellOnt 14331 (WL Can.), setting aside a decision of the Ontario Divisional Court (Marrocco, Sachs and Varpio JJ.), 2016 ONSC 55, 344 O.A.C. 159, 70 R.F.L. (7th) 34, [2016] O.J. No. 5 (QL), 2016 CarswellOnt 7 (WL Can.), setting aside a decision of the Ontario Superior Court of Justice (MacPherson J.), 2015 ONSC 5383, [2015] O.J. No. 4490 (QL), 2015 CarswellOnt 13100 (WL Can.), granting the respondent father’s application for return of the children to Germany. Judgment accordingly, Moldaver, Côté and Rowe JJ. dissenting.
Caterina E. Tempesta, Sheena Scott, Katherine Kavassalis and James Stengel, for the appellant.
Steven M. Bookman, Chris Stankiewicz and Gillian Bookman, for the respondent John Paul Balev.
Patric Senson and Tammy Law, for the respondent Catharine‑Rose Baggott.
Donnaree Nygard and Michael Taylor, for the intervener the Attorney General of Canada.
Caroline Brett and Rochelle S. Fox, for the intervener the Attorney General of Ontario.
Freya Zaltz, for the intervener the Attorney General of British Columbia.
Jeffery Wilson, Farrah Hudani and Jessica Braude, for the intervener Defence for Children International‑Canada.
Deepa Mattoo and Tiffany Lau, for the intervener the Barbra Schlifer Commemorative Clinic.
The judgment of McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon and Brown JJ. was delivered by
The Chief Justice —
I. Introduction
[1] The Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (“Hague Convention”), sets out the rules that apply to the parental abduction of children across international borders. The question before us concerns the application of the Hague Convention concept of habitual residence — a concept not defined in the treaty, but much considered by the courts of subscribing states around the world.
[2] The story begins in Germany, where the family — a father, a mother, and two children, all citizens of Canada — were living. Because the children were struggling in school, the parents decided that the mother should take the children to Canada for 16 months to experience the Canadian school system. During that period, the father purported to revoke his consent and brought an action under the Hague Convention for an order that the children be returned. While he pursued remedies in the German courts — unsuccessfully — the period of consent expired and the mother remained in Canada with the children. After the father resumed the application, a judge of the Ontario Superior Court of Justice ordered that the children be returned to Germany. The Divisional Court reversed this decision. The Court of Appeal reinstated it. That decision was appealed to this Court.
[3] I note at the outset that events have rendered this appeal moot. The children were returned to Germany in accordance with the application judge’s order. Custody proceedings ensued. The German courts granted the mother sole custody, and the children returned to Canada. However, the issues raised in this appeal are important, and the law on how cases such as this fall to be decided requires clarification. Hence these reasons.
[4] A finding that the children were habitually resident in Germany at the time of the alleged wrongful retention is a requirement for a return order under the Hague Convention. The parties and interveners put forward three approaches to determining the habitual residence of the children. The appellant, the Office of the Children’s Lawyer (“OCL”), argues for a child-centred approach, which emphasizes the situation and perspective of the children at the time of the application for their return to the original country. The respondent father argues for an approach based on the intention of the parents at the time the children left their original country. The respondent mother, and a number of interveners, argue for a hybrid approach, which treats the circumstances of the children and the intentions of the parents as factors to be considered in achieving a just result which fulfills the objectives of the Hague Convention.
[5] For the reasons that follow, I conclude that this Court should adopt the hybrid approach to determining habitual residence under Article 3 of the Hague Convention, and a non-technical approach to considering a child’s objection to removal under Article 13(2).[1]
[6] Because this appeal is moot, it is not necessary to decide whether the application judge erred in ordering the children returned to Germany.
II. Background
A. Facts
[7] The mother and father were married in Ontario in 2000. They moved to Germany in 2001 and acquired permanent resident status. They had two children, B. and M., who were born in Germany in 2002 and 2005.
[8] The family lived together in Dreieich, in a home that the parents purchased in 2008. The children attended school in Germany, apart from two visits to Ontario during which time the children attended school in St. Catharines. The parents separated in 2011, but reunited in 2012. During the period of separation, the father had custody of the children.
[9] The children struggled in school, and the parents agreed that the mother should take the children to Canada for the 2013-2014 school year. The father gave his consent for the children to stay in Canada until August 15, 2014, and he agreed to transfer physical custody of the children to the mother temporarily so that the children could be enrolled in school. The father’s consent letter contemplated the possibility of extension, but not early termination, of the temporary stay.
[10] The children arrived in Canada on April 19, 2013, and began attending school in St. Catharines four days later. The mother and the children left the bulk of their belongings in Germany. The father maintained weekly contact with the children through Skype and telephone calls, and he visited the children twice in Ontario. One of these visits took place during the alleged wrongful retention.
[11] Because he suspected that the mother would not return the children to Germany at the end of the school year, the father resumed custody proceedings in Germany and purported to revoke his consent to the mother’s temporary custody in March 2014. He commenced an application seeking the return of the children to Germany pursuant to the Hague Convention on April 11, 2014, through the Central Authority in Germany; this application was received by the Ontario Central Authority on May 5, 2014. On June 26, 2014, he commenced the application before the courts in Ontario. Around the same time, in March of 2014, the father also pursued custody (and relief under the Hague Convention) before the German courts. Pursuant to a consent order from the Ontario court dated July 17, 2014, the mother remained in Ontario with the children. During this time, on August 15, 2014, the original consent agreement lapsed. This then became the alleged wrongful retention triggering return under the Hague Convention. The father was ultimately unsuccessful before the German courts, and on February 6, 2015, counsel for the father requested that the matter be set for a hearing before the Ontario court.
[12] On April 21, 2015, the application judge requested that the OCL become involved to represent the interests of the children.
[13] The children were ultimately returned to Germany on October 15, 2016. The mother initiated proceedings in the German courts for custody and access, and was awarded sole custody. The children returned to Canada on April 5, 2017.
B. Judicial History
(1) Superior Court of Justice, 2015 ONSC 5383
[14] The application judge, MacPherson J., found that the children had “become integrated into their community” in Ontario. She nevertheless held that the children were habitually resident in Germany immediately prior to the alleged wrongful retention. She found that the parents did not have a “settled intention” that the children would stay in Canada, and that the father consented only to a temporary stay in Canada for an educational exchange.
[15] Having concluded that a case for return to Germany had been established, the application judge turned to the exceptions under the Hague Convention. She rejected the mother’s argument that the children had “settled in” under Article 12 because the father had commenced proceedings within a year of the wrongful retention, barring an Article 12 defence. Under Article 13(2), she found that the children were of an age (9 and 12) and degree of maturity at which she could consider their views. However, she concluded that the children had not expressed “substantial” objections with the requisite “strength of feeling”. The application judge ordered the return of the children to Germany.
(2) Superior Court of Justice — Divisional Court, 2016 ONSC 55, 344 O.A.C. 159
[16] The Divisional Court allowed the mother’s appeal. In its view, the key question was whether the habitual residence of the children had changed from Germany to Ontario while they lived in Ontario with the father’s consent, precluding the father from claiming their return under the Hague Convention. The court found that the children’s habitual residence had changed because the parents had a “settled intention” that the children would live temporarily in Canada, and during this time the children became integrated into the community, speaking English, attending school, and living with their mother and their maternal grandparents.
(3) Court of Appeal, 2016 ONCA 680, 133 O.R. (3d) 735
[17] The Court of Appeal allowed the father’s appeal and restored the order of the application judge. It held that where the parents have joint custody, one parent cannot unilaterally change the habitual residence of a child. Further, a child’s habitual residence does not shift when one parent gives consent to a time-limited stay in another jurisdiction.
[18] While a child’s acclimatization may be relevant to determining habitual residence in some circumstances, if an application is brought within one year of a wrongful removal or retention, evidence that a child has “settled in” is not relevant: Article 12. The Court of Appeal therefore concluded that the children were habitually resident in Germany at the relevant time, and that there had been a wrongful retention pursuant to Article 3 of the Hague Convention.
[19] With respect to Article 13(2), the Court of Appeal accorded deference to the application judge’s findings that the children’s objections to return were not substantial and did not exhibit the requisite strength of feeling. Therefore, the Court of Appeal ordered that the children be returned to Germany.
[20] Following the release of the Court of Appeal’s decision, the OCL applied for leave to appeal to this Court. The Court of Appeal and this Court dismissed an application for a stay pending this appeal. The children were returned to Germany where the German courts awarded custody to the mother. The children are now back in Canada.
III. Analysis
[21] The parents in this case agreed that the mother would take the children from Germany to Canada for educational purposes. Subsequently, the father sued under the Hague Convention for return of the children to Germany. We are asked to determine what principles apply when a parent in another country seeks to have children in Canada returned under the Hague Convention.
A. The Hague Convention
[22] The Hague Convention was concluded on October 25, 1980. With more than 90 contracting parties, it ranks as one of the most important and successful family law instruments completed under the auspices of the Hague Conference on Private International Law. Canada has been a party from the beginning. The Hague Convention is implemented by legislation in every province and territory.
[23] The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.
[24] The Hague Convention is aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence: see Article 1; Thomson v. Thomson, [1994] 3 S.C.R. 551, at pp. 579-81. The return order is not a custody determination: Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access.
[25] Prompt return serves three related purposes. First, it protects against the harmful effects of wrongful removal or retention: see R. Schuz, The Hague Child Abduction Convention: A Critical Analysis (2013), at p. 96; E. Gallagher, “A House Is Not (Necessarily) a Home: A Discussion of the Common Law Approach to Habitual Residence” (2015), 47 N.Y.U.J. Int’l L. & Pol. 463, at p. 465; Thomson, at p. 559; Re B. (A Minor) (Abduction), [1994] 2 F.L.R. 249 (E.W.C.A.), at p. 260.
[26] Second, it deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody: see E. Pérez-Vera, “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction (1981),[2] at p. 429; see also W. (V.) v. S. (D.), [1996] 2 S.C.R. 108, at para. 36; Gallagher, at p. 465; A. M. Greene, “Seen and Not Heard?: Children’s Objections Under the Hague Convention on International Child Abduction” (2005), 13 U. Miami Int’l & Comp. L. Rev. 105, at pp. 111-12.
[27] Finally, prompt return is aimed at speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues: see Schuz, at p. 96; Gallagher, at p. 465.
[28] The heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) where those rights were actually being exercised or would have been exercised but for the wrongful removal or retention. Crucially for the purposes of this appeal, the concept of habitual residence is not defined in the treaty.
[29] If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply. These exceptions can be summarized as follows:
(1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));
(2) There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));
(3) The child of sufficient age and maturity objects to being returned (Article 13(2));
(4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,
(5) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).
[30] Only one requirement of Article 3 is challenged in this case — whether the children were habitually resident in Germany at the time of t