In dealing with international child custody and abduction cases, Canadian judiciaries must look beyond parental intent and consider all relevant circumstances in the children’s interests before deciding what country the kids should live in and if they should be returned, says the Supreme Court of Canada.
In a 6-3 split decision, the court said current Canadian jurisprudence predominantly focus exclusively on the parents’ will and desire when determining the child’s “habitual residence.”
“The hybrid approach is fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions,” the court ruled in a decision released Friday.
When applying the Hague Convention, the multilateral treaty that administers the return of an abducted child, Canada’s highest court said judges must consider factors such as how long the children have lived in one country, how often they visit there if they aren’t residents, their living conditions and the reasons of the stay, as well as their citizenship and 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,” the court said. “But there is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child.”
The case before the court involved the two children of a Canadian woman, Kate Baggott, and her now ex-husband John Paul Balev, a Bulgarian and Canadian dual citizen.
The couple married in Toronto in 2000 and moved to Germany for his job. Their children were both born there but were not eligible for German citizenship. The marriage fell apart, but the family was still living together when Baggott and the children moved back to Canada in 2013. The father agreed to let them stay in Canada for 16 months.
However, Balev went to German authorities claiming that Baggott abducted their son and daughter, now 15 and 12. In administering the international treaty, the lower court in Canada ruled the children should remain with their mother here — a decision that was later overturned by an appeal court, which sent the kids back to Germany in October 2016.
Although the ruling would not have any effect on the case because German courts ultimately awarded the mother sole custody last year and allowed her and her two children to return to Canada last April, the Supreme Court said the law requires clarifications.
“The interests of children should be paramount in any family law issue brought before the courts,” said Baggott. “The hybrid model does give children’s interests consideration and respect before the courts that was missing before. However, serious advocacy work remains for those of us who seek to make the Hague Convention a true tool in the protection of children’s rights.”
“What’s really great about this decision is we are taking seriously that children have ideas. They are not a property. They do have a voice and their opinions should be part of the process,” added Patric Senson, the mother’s lawyer.
In dissent, Justices Michael Moldaver, Suzanne Côté and Malcolm Rowe said Baggott and Balev’s children were habitually resident in Germany because there was no parental agreement for them to settle in Canada. The hybrid approach goes against the Hague Convention’s purpose to enforce custody rights across international borders, they added.
“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,” they wrote.
“The hybrid approach basically plays into the hands of parents who abduct or wrongfully retain minors abroad. It gives weight to factors such as acclimatisation and preferences which will basically turn the matter into a custody dispute,” Balev told the Star.
“The abducting or retaining parent will only have to convince’ the children that they should stay where they are, which would not be hard to do given that the other parent will have virtually no contact with the children.”
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