On April 20, 2018, the Supreme Court of Canada released its decision in Office of the Children's Lawyer v. Balev, 2018 SCC 16 ("Balev") in which it adopts a new approach for application judges to utilize in determining the habitual residence of children under the Hague Convention.1

Chief Justice McLachlin (now retired), writing for the majority (with Côté, Rowe, and Moldaver JJ. dissenting), held that Canadian courts should adopt a hybrid approach to determining a child's habitual residence under Article 3 of the Hague Convention. Departing from the body of Canadian case law primarily focused on utilizing the intention of the parents to determine a child's habitual residence, the hybrid approach brings Canada in line with the broader international jurisprudence and requires an application judge to look to all relevant considerations arising from the facts of the case at hand. Perhaps most strikingly, under the hybrid approach the majority made the clear pronouncement that a child's habitual residence could change while staying with one parent in a different jurisdiction despite an express agreement between the parents as to the child's habitual residence - a direct contrast to the minority's conclusion that such statements or expressed intentions should be given decisive weight with respect to the question of a child's habitual residence.

The majority also held that when determining whether to permit an exception under Article 13(2),2 for the return of a wrongfully removed or retained child based on that child's objection to being returned application judges should use a non-technical approach to consider and weigh a child's objection to being removed, based on the child's age and degree of maturity.

Notably, both the majority and the pointed dissent echoed the Court's decision in R v Jordan, 2016 SCC 27,and placed considerable emphasis on the fact that it was up to Canada's judicial authorities to ensure the nation lived up to its obligations under Article 11 to "act expeditiously in proceedings for the return of children" under the Hague Convention.3 Despite the divergent viewpoints of the majority and the minority as to the appropriate test to be applied to determine a child's habitual residence, the Court was united in sending a clear message that Hague Convention proceedings should be judge‑led, not party‑driven-going so far as to encourage other Canadian courts to follow the Court's lead and take steps to ensure Hague Convention proceedings are flagged and decided using the most expeditious procedures available.

Facts and Proceedings Below

The mother and father in this case, both of whom were respondents in this appeal, originally married in Ontario in 2000, and moved to Germany in 2001 where they lived as permanent residents. While in Germany, the parents had two children, in 2002 and 2005 respectively, both of whom were Canadian citizens. The parents initially separated in 2011 but reunited in 2012, with the father having custody of the children during this initial period of separation.

The children had been struggling with school in Germany, and the parents agreed that for the 2013 - 2014 school year, the mother should move to Canada with the children. The father provided a time limited consent for the children to stay in Canada with the mother until August, 2014, and agreed to transfer physical custody of the children to the mother to allow her to enroll the children in school. While in Canada, the children attended school in St. Catharines, Ontario, where they resided with the mother and their maternal grandparents.

By March of 2014, the father suspected that the mother would not return the children to Germany at the end of the school year when the time limited consent was due to expire. The father purported to revoke his consent, and commenced custody proceedings in Germany, where, among other things, he brought an application under the Hague Convention for an order that the children be returned to Germany. Following the lapse of the parents' consent agreement, and the father's lack of success in the German courts, the father commenced a Hague Convention application in Ontario which formed the subject of this appeal.

The procedural history in this matter in Ontario illustrates the divergent and often unclear approaches used to determine the habitual residence of children under a Hague Convention application, which the Supreme Court rightly sought to clarify.

On the initial application MacPherson J. found evidence that the children had become integrated into their community in Ontario, but nevertheless held that the children were habitually resident in Germany immediately prior to the alleged wrongful retention. This finding was based on the fact that the parents did not have a "settled intention" that the children would stay in Canada, as evidenced by the time-limited consent agreement.4 The application judge also found that although the children were of an age and degree of maturity where their viewpoints could be considered, their objections to being returned to Germany did not have sufficient weight to trigger the exception under Article 13(2). On this basis, the mother was ordered to return the children to Germany. As a preliminary step, the application judge also requested that the Office of the Children's Lawyer ("OCL") be appointed to represent the interests of the children.

The Divisional Court allowed the mother's appeal, with its analysis focusing instead on whether the habitual residence of the children had changed from Germany to Ontario while they lived in Ontario with the father's consent, and by extension, whether this precluded the father from claiming their return under the Hague Convention. The Divisional Court held that the children's habitual residence had in fact changed due to the parents' settled intention that the children would live temporarily in Canada, and more importantly, that during this period of settled intention, the children became integrated into the community in Canada.

The Court of Appeal allowed the father's appeal, concluding that the children were in fact habitually resident in Germany at the requisite time, and that there had therefore been a wrongful retention pursuant to Article 3 of the Hague Convention. Notably, the Court of Appeal concluded that where parents have joint custody, one parent cannot unilaterally change the habitual residence of a child-particularly where one parent provides a time limited consent to stay in another jurisdiction.

Following the release of the Court of Appeal's decision, the OCL applied for and was granted leave to appeal to the Supreme Court. However, an application for a stay pending this appeal was dismissed. As a result, the children were returned to Germany in October, 2016, where the mother was subsequently awarded sole custody of the children by the German courts-with the children being permanently returned to Canada in April, 2017.

While this appeal itself was rendered moot by the fact that the German courts decided the issue of the custody of the children and authorized their return to Canada, the Supreme Court noted the importance of the issues raised on the appeal, and so heard the appeal to clarify the law surrounding the determination of the habitual residence of a child. Given that the appeal was moot, the majority refrained from making any actual determination on the appeal (it neither granted nor dismissed the appeal) and simply expressed its opinion on the appropriate test to be applied under the Hague Convention.

Issue at the Supreme Court of Canada

The central issue address on this appeal was how an application judge should approach the determination of a child's habitual residence under Article 3 of the Hague Convention.

The Court also addressed how an application judge should determine whether to permit an exception under Article 13(2) for the return of a wrongfully removed or retained child based on that child's stated objection to the return.

Standing was granted to 5 interveners to participate: the Attorneys General of Canada, Ontario and British Columbia, as well as Defence for Children International-Canada and the Barbara Schlifer Commemorative Clinic.

Article 3 of the Hague Convention & Habitual Residence

The Hague Convention was formed with the specific aim of combating international child abductions by providing a mechanism for the prompt return of children who were wrongfully abducted, or wrongfully retained within another signatory jurisdiction. Having been adopted by more than 80 countries around the world, the Hague Convention has been an effective tool to combat international child abductions since 1980. The consequences flowing from international child abductions are serious for both the abducted child as well as for the parents who are left behind, and they warrant a mechanism for the speedy resolution of disputes, and the prompt return of children to their habitual residence. As outlined by McLachlin CJ., the emphasis in the Hague Convention on securing the prompt return of children who have been wrongfully retain or removed from a particular jurisdiction is intended to serve three central purposes:

  1. To protect against the harmful effects of wrongful removal or retention.
  2. To deter parents from abducting a child in the hopes that they will be able to establish links in a new country that might ultimately award them custody.
  3. To provide an avenue for the timely adjudication of the merits of a custody or access dispute in the jurisdiction where a child is habitually resident.5

The Hague Convention itself provides the mechanism for the enforcement of parents' custody rights in order to ensure the prompt return of children to their country of habitual residence. It does so by empowering application judges to order the return of children whose removal or retention is determined to be wrongful. In achieving these purposes, the central aspect of the Hague Convention is the prompt return mechanism for children set out under 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. 6

As described by the majority, 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.7

Such a return order under the Hague Convention is not intended to be a custody determination, but rather is a preliminary order designed to restore the status quo within the family that existed before the wrongful removal or retention. Notably, the Hague Convention does not define "habitual residence". This has led to a substantial body of international jurisprudence on the question of how to best determine a child's habitual residence on a Hague Convention application, and as discussed below, harmonizing Canada's approach to determining a child's habitual residence with the rest of the international jurisprudence was one of the specific factors relied on by the majority in adopting the hybrid approach.

From Three Approaches to One

On this appeal, the Court was faced with three distinct proposals for how to determine a child's habitual residence.

First is the parental intention approach which determines a child's habitual residence by reference to the intention of the parents with the right to determine where the child lives, and which has been most frequently applied throughout Canada. As McLachlin CJ. describes:

Under this approach, time-limited travel to which the parents agree does not change the child's habitual residence. "Where the children are sent abroad to live with relatives or for educational purposes, their habitual residence will not change where the parents intend for them to return, but may change after a period of time where there is no such intention". Where the parents have agreed that the child will stay outside the country of habitual residence for a limited time, that intent governs throughout the agreed period, and allows the parent in the original country to mount a claim for the child's return under the Hague Convention at the end of the agreed period. This approach currently dominates Canadian jurisprudence, where courts in a number of jurisdictions consider parental intent to be the primary consideration in determining a child's habitual residence.8 (citations omitted)

This approach, which was strongly advocated for by the minority, provides parents with the predictability to structure their affairs, and gives application judges a seemingly straightforward analysis to apply. As the minority argues, in cases where parental intent is clear, such as by written agreement, that should be sufficient to establish a child's habitual residence, and it is only in cases where this evidence is inconclusive that courts should then look to broader evidence to determine habitual residence. However, the majority seriously questioned the rigidity of the parental intention approach, and while evidence of parental intent was accepted by the majority as being indicative of a child's habitual residence in some circumstances, parental intention alone was not found to be determinative. The majority's concern was that the parental intention approach could be used to facilitate manipulation of the Hague Convention by leading parents to exercise intention in ways that artificially maintain the child's habitual residence in the initial state, contrary to the reality of the child's circumstances.9

Second is the child-centred approach, which was advocated for by the OCL. Under this approach, a child's habitual residence under Article 3 is determined by way of a broader analysis of a child's acclimatization in the new jurisdiction. As McLachlin CJ. outlines, this approach is intended to focus on the child's connection to the state, and whether that alone is indicative of whether a child is habitually resident there. This approach was applied by the Quebec courts to determine habitual residence on Hague Convention applications up until 2017.

Third is the hybrid approach, which purports to occupy the middle ground between the parental intention and the child-centred approaches, and which was adopted by the majority as the proper analysis to determine a child's habitual residence. As the majority describes, under the hybrid approach, rather than focusing primarily on either parental intention or the child's acclimatization, the analysis of the judge determining habitual residence under Article 3 should be open-ended and look to all relevant considerations arising from the facts of the case. An approach which has already been adopted in Quebec.10

Unlike the parental intention approach or the child-centred approach, with the hybrid approach to habitual residence, the application judge is to determine the focal point of the child's life immediately prior to the removal or retention, and consider all relevant links and circumstances within the child's life. As McLachlin CJ. articulates, this includes "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."11

The hallmark of the hybrid approach is the fact that no single factor should dominate the analysis, and instead the application judge should be free to consider the entirety of the circumstances when assessing habitual residence. McLachlin CJ. observed that "while courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed."12 In providing further guidance, the majority set out a number of possible factors to consider, such as the duration, regularity, conditions and reasons for a child's stay in a jurisdiction, and the child's nationality.13

The majority noted that the relevant considerations may also vary according to the age of the child concerned, with younger children being more closely tied to the family environment and to their primary caregiver. The majority acknowledged that under the hybrid approach the circumstances of the parents, including their intentions, may be important factors, particularly in the case of infants or young children; however, the intention of the parents are not meant to be determinative, and they cautioned against over-reliance on parental intention, as follows:

It follows that 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 in determining where the child was habitually resident at the date of wrongful retention or removal.14 (citations omitted)

In adopting the more fluid and flexible hybrid approach, the majority's aim was to harmonize Canada's approach to determining a child's habitual residence with the prevailing body of international case law in other signatory jurisdictions, including the European Union, the United Kingdom, Australia, New Zealand, and some courts within the United States. The majority emphasized that the desirability of following the prevailing thread of international case law, and harmonizing Canada's approach with those signatory countries with which Canada has close legal ties, is preferable, unless there are strong reasons to the contrary not to do so.

To this end, the majority continued its analysis of the hybrid approach and held that were clear reasons for adopting the hybrid approach in Canada, not the least of which is its adherence to the text, structure, and purpose of the Hague Convention. More specifically, the majority found that the hybrid approach best facilitates the goals of prompt return under the Hague Convention in that it deters parents from abducting children in an attempt to establish links in a new jurisdiction, while also encouraging prompt resolution of custody and access disputes in the proper forum, and simultaneously protecting children from the harmful effects of wrongful removal or retention.15

With respect to deterrence, the majority noted that the hybrid approach still provides the same level of deterrence as the parental intention approach by allowing application judges to consider intent as a factor, while also allowing the judge to assess all of the circumstances to determine whether a parent has taken steps to artificially create legal or jurisdictional links to the originating country.

Of particular interest, the majority commented that while the parental intention approach may appear on its face to be a less complex and faster approach for ensuring the prompt return of children, in reality, the practice often devolves into detailed and conflicting evidence as to the intentions of the parents.16 Conversely, the child-centred approach often results in conflicting evidence, including expert evidence, as to the child's connection to each jurisdiction. By contrast, the majority argued that the hybrid approach allows application judges to make an appropriate order on all of the evidence, meaning that they are not required to compile evidence to reach a definitive conclusion on the narrow question of which parent's version of events is more accurate, but rather that they are free to assess the evidence that is most relevant to the given circumstances.17

To conclude, the majority held that the hybrid approach represents a principled advance on the parental intention and child-centred approaches. Noting that the hybrid approach is able to at once recognize that the child is the focus of the analysis, while simultaneously acknowledging that it is necessary to also consider parental intent in order to properly assess the child's connections to a country, the majority held that the hybrid approach is best positioned to protect children from the harmful effects of wrongful removal or retention. The majority concluded that the hybrid approach is situated as an incremental response to the jurisprudence and the fact-based nature of the inquiry required by the Hague Convention:

Applying the hybrid approach, the application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement. But the judge also considers all other evidence relevant to the child's habitual residence. The court must do so mindful of the risk of overlaying the factual concept of habitual residence with legal constructs like the idea that one parent cannot unilaterally change a child's habitual residence, or that a parent's consent to a time-limited stay cannot shift the child's habitual residence. The court must also avoid treating a time-limited consent agreement as a contract to be enforced by the court. Such an agreement may be valuable as evidence of the parents' intention, and parental intention may be relevant to determining habitual residence. But parents cannot contract out of the court's duty, under Canadian laws implementing the Hague Convention, to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention or removal.18

The Objection of the Child & Article 13(2)

Under the Hague Convention, a child who is determined to be wrongfully removed from the country of their habitual residence, or wrongfully retained in a country that is not their habitual residence must be returned forthwith, unless an exception applies. In Balev, the majority also took the opportunity to comment on the operation of one such exception, Article 13(2), which is based on the objections of a child to being returned. The exception under Article 13(2) reads as follows:

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.19

As with "habitual residence," the Hague Convention does not specify particular requirements or procedures to establish "sufficient age and maturity" under Article 13(2). In reviewing the application of this exception, the majority concluded that application judges should use a fact-based, common-sense approach to determining whether the elements of Article 13(2) are established in a given case.

The majority noted that in most cases, the object of Article 13(2) could 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 his or her judicial discretion as to whether to return the child. To this end, they endorsed a straightforward analysis in keeping with the text of the Hague Convention:

Determining sufficient age and maturity in most cases is simply a matter of inference from the child's demeanor, testimony, and circumstances. In some cases, it may be appropriate to call expert evidence or have the child professionally examined. However, this should not be allowed to delay the proceedings.

As in the case of age and maturity, the child's objection should be assessed in a straight-forward fashion - without the imposition of formal conditions or requirements not set out in the text of the Hague Convention.20 (citations omitted)

Delay

Delay in Hague Convention proceedings imposes hardship, anxiety, and uncertainty on children who are often caught between conflicted parents, and left in limbo as to where they will reside. A fact which the Court did not take lightly when reviewing the time it took for this appeal to reach its conclusion. To combat this type of delay, under Article 11 of the Hague Convention, judicial authorities in contracting states are specifically required to "act expeditiously in proceedings for the return of children" in order to fulfill the first object of the Hague Convention; namely, to secure the prompt return of a child who has been wrongfully removed or retained.21

Notably, from the commencement of the father's Ontario application in June 2014, until the release of the Court's decision in this appeal in April 2018, nearly four years had elapsed-ultimately resulting in the appeal being rendered moot as a result of the German court's decision with respect to custody.

Despite the sharp differences between the minority and the majority regarding the proper approach to determining a child's habitual residence, the Court was unified in condemning delay in Hague Convention proceedings, and advocating for greater judicial involvement to ensure the prompt return of children through the most expeditious procedures:

The time it took to bring this Hague Convention application to hearing and resolve the ensuing appeals was unacceptably long. In another context, this Court has recently decried a culture of complacency towards delay within the justice system: see R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631, at para. 4. Complacency towards judicial delay is objectionable in all contexts, but some disputes can better tolerate it. Hague Convention cases cannot.22

The Court went further in noting that it had taken steps to ensure that Hague Convention cases were flagged internally and expedited in their registry, and encouraged other Canadian courts to follow suit:

I hope other Canadian courts will consider what further steps they can take to ensure that Hague Convention proceedings are determined using the most expeditious procedures available. Judges seized of Hague Convention applications should not hesitate to use their authority to expedite proceedings in the interest of the children involved. Unlike much civil litigation in Canada, Hague Convention proceedings should be judge-led, not party-driven, to ensure they are determined expeditiously.23

Dissent

The decision in Balev features a strong dissent which is more in line with existing jurisprudence in the United States, and which advocates for the use of the parental intention approach when determining a child's habitual residence.

In brief, the minority's position was that a child's habitual residence should be ascertained on the basis of a single straightforward question; namely: where did the parents last mutually intend for the child to be habitually resident?24 The minority's reasoning was that where there is sufficient evidence to allow a court to answer this single question, the determination of habitual residence should immediately end there. Further, the minority's positon was that it is only when the evidence of parental intention is unclear or does not allow the application judge to make a decision, that the analysis should be broadened to include additional considerations with respect to the child's circumstances.

The minority's concern was that in adopting the hybrid approach, the importance of parental intent would be diluted as the primary consideration in a Hague Convention application in favour of a multi-factor test. More specifically, the concern was that such a multi-factored test would result in an unprincipled and open-ended approach, which would be untethered from the text, structure, and purpose of the Hague Convention, and would create a recipe for litigation:

By adopting the hybrid model, the majority offers parties an invitation to litigate even in clear cases like this one - because even in the face of unambiguous and binding agreements, there is always the possibility that evidence of other factors can outweigh parental intent. (It is not entirely clear when or how, under the majority's analysis; but all the more reason to try.) The scope of this litigation will be broad: the majority instructs judges to look at "all relevant factors" because "the list . . . is not closed" (paras. 47 and 65). The end result will be expensive and prolonged litigation in which parties are encouraged to seek discovery into everything from school and medical records to tax returns and credit card statements. All the while, the child continues to develop connections to the new jurisdiction that might, on some accounts, bolster the argument that his or her habitual residence has changed. This is a far cry from the prompt and fair decisions that majority envisions.25

The minority's fear, was that in granting application judges what it described as "unbridled discretion to consider or to disregard whatever they deem to be appropriate," the hybrid approach would lead to outcomes that may be "as inconsistent as they are unpredictable."26 The concern was that the effects of this indeterminacy would be felt most acutely by parents and potential litigants who would be without proper guidance as to how they should order their family affairs-particular in scenarios such as Balev, where the parents wished to come to an agreement about the children's habitual residence. As the minority concludes:

In summary, we view the majority's approach as embedding indeterminacy in a context that simply cannot tolerate it. Multi-factor balancing tests can play a helpful role in certain contexts. Unfortunately, this is not one of them: the Convention requires swift and predictable decisions, and the hybrid model provides neither.27

Implications

With Balev, the Court clarifies the appropriate analysis to be used for determining a child's habitual residence in Canada. The hybrid approach empowers application judges with the necessary authority to consider all relevant factors in making a determination of a child's habitual residence. Whether such a determination will hinge on a settled parental intention, or upon the particular factual circumstances of a given child, will be entirely dependent on the circumstances of each case, and on the application judge's analysis of the entirety of those circumstances. While this does raise the possibility of increasing the body of evidence put before application judges in Hague Convention proceedings, the majority's hope is that it will provide application judges with the freedom to more accurately and efficiently determine a child's habitual residence by looking at the totality of the circumstances in each case. However, it remains to be seen whether the concerns raised by the minority will come to light, and the hybrid approach will simply be used by parents as a "recipe to litigate" even in clear cut Hague Convention cases.

Regardless of the competing viewpoints on the hybrid approach, and the implications flowing therefrom, the Court in Balev was united in its endorsement that the time sensitive nature of Hague Convention applications, and the direct harm that comes from delay, should lead to increased judicial involvement and expedited proceedings in Hague Convention applications across the country.

Gowling WLG was Ottawa Agent for counsel for the appellant, Office of the Children's Lawyer and for counsel for an intervener, Defence for Children International-Canada at the Supreme Court of Canada.

[1] Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. TS 1983 No. 35 ("Hague Convention").

[2] As noted by the Court, this provision is not specifically numbered within Article 13 of the Hague Convention, but is generally referred to as Article 13(2).

[3]Hague Convention art. 11.

[4] Balev at para 14.

[5] Balev at paras 25 - 27.

[6] Hague Convention art. 3.

[7] Balev at para 29.

[8] Balev at para 40.

[9] Ibid at para 61.

[10] Ibid at para 42.

[11] Ibid at para 43.

[12] Ibid at para 47.

[13] Ibid at para 44.

[14] Ibid at para 46.

[15] Ibid at para 59.

[16] Ibid at para 62.

[17] Ibid at para 63.

[18] Ibid at para 73.

[19] Hague Convention art. 13(2).

[20] Balev at paras 79-80.

[21] Hague Convention arts. 1(a), 11.

[22] Balev at para 82.

[23] ibid at para 89.

[24] Ibid at para 110.

[25] Ibid at para 149.

[26] Ibid at para 152.

[27] Ibid at para 153.