Hague Convention contracting states accept that each other’s courts will properly consider the best interests of children – as such, wrongfully removed children must be returned to their habitual residences.

Epstein's This Week in Family Law

Philip Epstein

Balev v. Baggott, 2016 CarswellOnt 14331 (Ont. C.A.)

Hague Convention - Habitual Residence

Balev v. Baggott, 2016 CarswellOnt 14331 (Ont. C.A.) - Laskin J.A., Sharpe J.A. and Miller J.A. When I wrote about this case and the Ontario Divisional Court decision back in February, 2016, I ventured that there was very good reason to doubt the correctness of the decision. I pointed out that if in fact it was correct, it raised some serious questions about how parties should draft temporary agreements for custody that involve different jurisdictions.

The Court of Appeal for Ontario has weighed in and determined that the Divisional Court indeed erred in this decision. With the time-limited consent of the father, the mother had come to Ontario from Germany with two young children and when the consensual period expired, the mother decided to remain in Ontario and refused to return the children to Germany. The application judge found that the habitual residence of the children was Germany and did not change during the consensual period in Canada and ordered them returned to Germany. The Divisional Court reversed that decision and found that the habitual residence was, in fact, Ontario.

When this decision was issued and the mother was directed to return the children to Germany, the mother who was obviously upset at this result told a reporter that the Hague Convention was “legislative kidnapping”.

I appreciate how upset the mother is since the children have now been in Ontario for three years, have been in regular school and established relationships. Nevertheless, the Divisional Court decision was contrary to the purpose of the Hague Convention. The Divisional Court went wrong in trying to analyze this case based on the best interests of the children. As the Court of Appeal said in Katsigiannis v. Kottick-Katsigiannis, 18 R.F.L. (5th) 279 (Ont. C.A.) at para. 32:

Hague Convention application does not engage the best interests of the child test - the test that is universally and consistently applied in custody and access cases. Hague Convention contracting states accept that the Courts of other contracting states will properly take the best interests of the children into account . . . Thus, where there has been a wrongful removal or retention, and no affirmative defence is established within the meaning of the Hague Convention . . . the children must be returned to their habitual residence. Clearly in this case it was for the Courts of Germany to determine custody and the best interests of the children.

The Court of Appeal again reviews the principles of habitual residence and their cases of Korutowska-Wooff v. Wooff, 5 R.F.L. (6th) 104 (Ont. C.A.) and Wentzell-Ellis v. Ellis, 78 R.F.L. (6th) 245 (Ont. C.A.).

A parent cannot unilaterally change a child’s habitual residence under the Hague Convention. The Divisional Court’s finding that the habitual residence could change because of the parties’ joint agreement that the children should spend a year in Canada does not change habitual residence, and the Divisional Court erred in that regard.

The Divisional Court placed considerable weight on the fact that the children had settled into their new environment in Ontario. There is authority that supports consideration of the children’s association with a new jurisdiction. See, for example, Csoke v. Fustos, 2013 CarswellOnt 5137 (Ont. S.C.J.) at para. 260; Habib v. Amin, 51 R.F.L. (7th) 432 (Ont. S.C.J.), at para. 42 and O’Brien v. O’Brien, 59 R.F.L. (6th) 389 (Ont. S.C.J.), at paras. 35-36. However, the principle of “settling in” is not relevant if the application is brought within one year of the wrongful detention or removal. See Article 12 of the Convention. See, for example, Bazargani v. Mizael, 63 R.F.L. (7th) 58 (Ont. C.A.), at para. 22 and Ibrahim v. Girgis, 48 R.F.L. (6th) 1 (Ont. C.A.). Thus it was an error for the Divisional Court to consider the fact that the children had settled in Ontario when determining habitual residence.

The Court of Appeal was not unmindful of the distress this would cause the mother. However, they pointed out the following:

I have considerable sympathy for the mother, who obviously feels strongly that it is in her children’s best interests to remain in Canada. I also recognize that the children have now been in Ontario for more than three years, and that moving them back to Germany is likely to be difficult. No doubt those considerations were a significant factor influencing the Divisional Court to overturn the decision of the application judge.

It is important to remember, however, that although this case involves the interests and needs of these two young children, it raises legal issues that transcend their interests and that affect the interests of countless other children and their parents. It is also important to remember that the mother’s actions were in direct violation of the father’s custodial rights.

In my respectful opinion, the Divisional Court ‘s decision would, if upheld, undermine the purpose and proper operation of the Hague Convention. To find that a child’s habitual residence can be changed by the unilateral actions of one parent during the period of a time-limited consensual absence undermines the purpose and efficacy of a carefully crafted scheme to deal with child abduction and wrongful retention. It renders time-limited travel consents essentially meaningless, and would allow one parent to lay the foundation for child abduction by obtained a defined, temporary consent of the other parent to travel with the child.

I appreciate that this was an enormously difficult situation for the mother, particularly after the length of time the children have been in Ontario. Nevertheless, the Court of Appeal, respectfully got it absolutely correctly and this decision makes it clear that habitual residence cannot be interfered with on a temporary basis such as occurred here and that section 12 of the Hague Convention does not apply in the circumstances of such a case.


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