In an interesting new decision granted under the Hague Convention, the Ontario Court of Appeal orders two children to be returned to their father in Germany after living with their mother in Canada for three years (Balev v Baggot 2016 ONCA 680). The Ontario Court of Appeal upheld that the best interests of the child test did not apply in Hague Convention applications and that the decision should simply be one of deciding whether a child has been abducted or wrongfully retained within the meaning of the Hague Convention. In order to show that the children had been wrongfully abducted or wrongfully retained, the father had to show that Germany was the children’s habitual residence, despite the children having lived in Canada for three years. The decision turned on the question of whether a party could unilaterally change the habitual residence of a child during a period of a time-limited consensual absence (ie: a travel consent). The Ontario Court of Appeal unanimously held that 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 (the Hague Convention). It renders time-limited travel consents essentially meaningless, and would allow one parent to lay the foundation for child abduction by obtaining a defined, temporary consent of the other parent to travel with the child. However, the Ontario Court of Appeal did not close the possibility that there may be cases where a consensual time-limited stay is so long that i becomes time-limited in name only and the child’s habitual residence has in fact changed.
Erika MacLeod is a family and divorce lawyer practicing in Guelph, Fergus, Elora, Kitchener-Waterloo, Orangeville, and the surrounding areas. If you require legal advice for your family or divorce matter contact her at www.macleodfamilylaw.com.