“The first case in Ontario to consider the effect of Balev on Hague decisions was Justice Pawagi’s decision in Andegiorgis v. Giorgis, 2018 ONCJ 965. In that case, the children had moved between Canada and Norway, but last lived in Norway with their parents. The parties separated, and the mother left Norway for Toronto with the children. The father commenced a Hague Application for the return of the children to Norway. The mother took the position that as a result of Balev, the Court must consider the circumstances of the children after the alleged wrongful removal and gave significant evidence that the children were now more connected to Canada and therefore Canada was their place of habitual residence. Justice Pawagi stated at para. 34:
Father’s counsel submits, on the other hand, that, contrary to popular belief/fear, a close reading of Balev would demonstrate this is not what Balev has done. I agree with the father’s counsel’s interpretation that Balev has not actually eviscerated the Hague Convention. (emphasis added)
Justice Pawagi clarified the conflicting interpretations of Balev, highlighting that the Supreme Court of Canada decision is clear that when using the hybrid approach, “the judge must determine the focal point of the child’s life – the family and social environment in which its life has developed” – immediately prior to the removal or retention. Subsequent links are relevant only to the exception under Article 12.
At para. 39, Justice Pawagi offered further clarification:
The Supreme Court is clear that while the child’s circumstances are to be considered along with parental intention in the hybrid approach, the timing of those circumstances are prior to the wrongful removal or retention, and not afterwards. The court is clear that the child’s circumstances following the wrongful removal or retention can only be considered when the Hague application is not brought within a year of the wrongful removal or retention.
Thus, in an alleged wrongful retention case, as Balev was, the court is to consider not just parental intention regarding the temporary nature of the state, but also the children’s circumstances, including connections they form, during the agreed-upon temporary stay. But the court should not consider circumstances after the alleged wrongful retention.
…
Thus, Balev has only really expanded what the court must consider in determining habitual residence in wrongful retention cases as the court may now consider connections the child forms in another jurisdiction during the agreed-upon temporary stay.
Balev has not expanded the test to permit the court to consider connections formed after a wrongful removal (where the application was brought within one year).
In the case before me, I cannot consider the children’s connections to Ontario created after their wrongful retention in Ontario. In using the hybrid approach set out in Balev, I can still only consider the relevant factors in place prior to the children’s wrongful retention and not those formed since returning to Ontario.”