“There is no definition of “habitual residence” in the Hague Convention; it is a question of fact to be determined. The Supreme Court of Canada, in Balev, has provided some much-needed guidance. It has indicated that a “hybrid approach” must be taken in determining where a child habitually resided, which focuses not only on the parents’ intentions or the child’s circumstances but requires the judge to look at all relevant considerations arising from the facts of the case at hand: Balev, at para. 42.
In adopting the hybrid approach, the application judge should determine the focal point of the child’s life, namely the family and social environment in which its life has developed, immediately prior to the retention. The judge should consider all the relevant links and circumstances, including the child’s links, in this case, to both Mexico and Ontario, and the circumstances of the move to Mexico. The judge should consider the duration, regularity, conditions, and reasons for the child’s stay in Mexico, as well as the child’s nationality. No single factor should dominate the analysis, but the judge should consider the entirety of the circumstances: Balev, at paras. 43-44.
The age of the child at issue is also relevant. If a child is an enfant, then the child’s environment is determined by reference to those with whom the child lives and by whom the child is looked after and cared for. When the child is an infant, the circumstances of the parents, and their intentions, are important. The parental intention though is not determinative, but it can be an indicator capable of complementing a body of other consistent evidence. It depends on the circumstances of the case: Balev, at para. 45; Ludwig, at para. 32.
In Knight v. Gottesman, 2019 ONSC 4341, 147 O.R. (3d) 121, Justice Shore reviewed the decision of the Nova Scotia Court of Appeal in Beairsto v. Cook, 2018 NSCA 90, 17 R.F.L. (8th) 1, which was released after Balev. In Beairsto, the mother was the child’s only caregiver at the relevant time. The appellate court found that the Mother’s place of residence dictated the child’s place of residence. The Court of Appeal considered that the mother had no family or support network in Washington, which was the competing jurisdiction. It also considered that she was only in Washington on a six-month visitor’s visa. They found that there was no permanency to her move to Washington. In these circumstances, the court found that Nova Scotia was the habitual residence of the child.”