Office of the Children’s Lawyer v. Balev, 2018 SCC 16 — Family law — Custody — Wrongful removal or retention of child

On appeal from a judgment of the Ontario Court of Appeal (2016 ONCA 680) setting aside a decision of the Ontario Divisional Court (2016 ONSC 55).

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 (6-3): 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.

Reasons for judgment: McLachlin C.J. (Abella, Karakatsanis, Wagner, Gascon and Brown JJ. concurring)

Joint Dissenting Reasons: Côté and Rowe JJ. (Moldaver J. concurring)

Neutral Citation: 2018 SCC 16

Docket Number: 37250