Hybrid approach to determining habitual residence under Hague Convention should be adopted

Parties married in Ontario, moved to Germany where they acquired permanent residence status and had two children. Parties agreed that mother would take children to Ontario where they would attend school until August 2014. Father commenced application under Convention on the Civil Aspects of International Child Abduction, 1980 (Hague Convention) and original consent agreement lapsed. Application judge requested involvement of Office of Children’s Lawyer (OCL) and ordered return of children to Germany. On appeal, it was found that children’s habitual residence had changed. Father’s appeal was allowed and order of application judge was restored. OCL applied for leave to appeal. Children were returned to Germany where custody was granted to mother and children were returned to Canada. Although events had rendered appeal moot, issues raised in appeal were important and law required clarification. Hybrid approach to determining habitual residence under Article 3 of Hague Convention and non-technical approach to considering child’s objection to removal under Article 13(2) should be adopted. Principle of harmonization supports hybrid approach and hybrid approach best conforms to text, structure and purpose of Hague Convention. 

Office of the Children’s Lawyer v. Balev (2018), 2018 CarswellOnt 6096, 2018 CarswellOnt 6097, 2018 SCC 16, 2018 CSC 16, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellOnt 14331, 2016 ONCA 680, Laskin J.A., Robert J. Sharpe J.A., and B.W. Miller J.A. (Ont. C.A.).