Children’s habitual residence: Balev v. Baggott, 2016 ONSC 55

The parties married in Ontario in November of 2000.  In 2001, they moved to Germany, where their two children were born in 2002 and 2005.  The children lived the majority of their lives in Germany until 2013, but have Canadian citizenship.

In April 2013, the parties separated and agreed that the Appellant mother would take the children to Ontario where the children would attend school.  The Respondent father executed a consent letter whereby the children would have to return to Germany by August 15, 2014.  The Respondent’s letter further granted the Appellant “temporary” physical custody of the children until that date.  The children and the Applicant traveled to Ontario on April 19, 2013.

In March 2014, the Respondent purportedly revoked his consent and began a Hague Convention application in Germany on April 11, 2014, which was later transferred to Ontario.

In April 2015, the application judge ordered the Office of the Children’s Lawyer (OCL) to intervene.  The OCL advised that the children did not want to return to Germany despite their positive feelings for their father.

The application judge, upon reviewing the case law, determined that though there were no valid German court orders dealing with the children’s residence, the children’s habitual residence was Germany.  She based her finding on legal principle in Cornaz v Cornaz-Nikyuluw, which suggested that a parent cannot unilaterally change the habitual residence of a child without the express or implied consent of the other parent, and that to do so would be a wrongful detention.

The application judge held that the Appellant had thus wrongfully retained the children in Ontario within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) and ordered the children returned to Germany.

The Appellant appealed the application judge’s decision.

Analysis

Under Article 3 of the Convention, retention of removal of a child is “wrongful” where:

  • It is in breach of rights of custody attributed to a person… either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
  • At the time of the removal or retention those rights were actually exercised either jointly or alone, or would have been so exercised but for the removal or retention.

The Court noted that the Appellant had not wrongfully removed the children from Germany in April 2013 as the Respondent had knowledge of the removal and given his consent.  Furthermore, the Court agreed with the application judge that Respondent could not revoke his consent as he purported to have done in March 2014.

As such, the effective date for determining the children’s habitual residence was August 15, 2014.

Since the Convention does not define “habitual residence”, the Court looked to the principles set out in Korutowska-Wooff v. Wooff:

  1. The question of habitual residence is a question of fact to be decided based on all of the circumstances;
  2.  The habitual residence is a place where the person resides for an appreciable period of time with a “settled intention”;
  3. A “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment; family, etc.; and
  4. A child’s habitual residence is tied to that of their custodian(s).

Though the Court agreed with the proposition set out in Cornaz that “a wrongful retention does not bring about a change in the habitual residence of a child as it is a unilateral action.”  However, the Court believed the proposition alone was insufficient to resolve the matter at hand.

The issue in this case was whether the children’s habitual residence changed from Germany to Ontario during the consensual period of April 19, 2013 to August 15, 2014 when they were living in Ontario with their father’s consent.  The Court noted that in this analysis, the length of the consensual period was a crucial factor.

The Court made special note of section 22(2)(b) of the Children’s Law Reform Act which states that a child’s habitual residence can be where they reside with one parent “with the consent, implied consent or acquiescence of the other.”

After a review of all the evidence available to the application judge, the Court determined that during the consensual period, the children’s habitual residence changed from Germany to Ontario based on the following:

  • The children were Canadian citizens and spoke English;
  • On the last day of the consensual period of residing in Ontario, the children had been living in St. Catherine’s for an appreciable period of time of 16 months with their mother and maternal grandparents;
  • The children attended school in Ontario during the consensual period;
  • The Appellant had the intention to remain in St. Catherine’s temporarily at the beginning of the consensual period sufficient to constitute a “settled” intention for the purpose of obtaining employment and to allow the children to attend a Canadian School; and
  • The children had “become integrated” into the community in Ontario where they were residing.

The fact that the father resided in Germany and the children had lived in Germany move of their lives prior to 2013 was not sufficient in the Court’s opinion to preclude the change in habitual residence.

As such, the Court dismissed the father’s Hague Application and held that the custody rights of the children would be determined by the Ontario courts.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.