“For article 3 of the Hague Convention to apply, I would have to find that the children were habitually resident in Florida immediately before the wrongful retention, which was June 6, 2022, according to the mother. The father challenges the application of the Hague Convention on the basis that the separation agreement dictates that the children were to be returned to Toronto if by the review date the mother had not met certain conditions. While the mother maintains that Florida was the children’s habitual residence, the father submits that the children’s habitual residence was Toronto and their time in Florida was always intended to be temporary unless and until the conditions were met by the mother.
The Balev decision sets out how an application judge should determine the question of a child’s habitual residence. The three possible approaches were discussed: the parental intention approach, the child-centered approach, and the hybrid approach. Until Balev, the parental intention approach dominated Canadian jurisprudence. Under this approach, time-limited travel to which the parents agree does not change the child’s habitual residence. The hybrid approach, however, holds that instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case. The hybrid approach is fact-bound, practical and unencumbered with rigid rules, formulas, or presumptions: Balev, at paragraphs 45-47.
In Balev, at para. 37, the Supreme Court of Canada held:
The requirement that the child’s habitual residence be in the state of the parent seeking return serves to ensure that the state to which the child is returned is the proper state to determine custody. In principle, custody should be determined in the state in which the child is habitually resident. This supports the goals of mitigating psychological trauma to the child, respecting the jurisdiction of the state of habitual residence to make decisions on custody and access, and deterring abductions and wrongful retentions.
The Court endorsed a hybrid approach to determining a child’s habitual residence, which tasks the court with determining 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”: Balev, at paras. 40-43.
The judge considers all of the child’s relevant links to and circumstances in country A, the circumstances of the child’s move from country A to country B, and the child’s links to and circumstances in country B: Balev, at para. 43. These considerations include the duration, regularity, conditions, and reasons for the child’s stay in the territory of a member state, and the child’s nationality.
The task of determining the children’s habitual residence is to consider how connected the children are to the jurisdictions involved, in this case both Florida and Ontario: K.F. v. J.F., NLCA 33, at para. 60. Such an inquiry must look at all relevant factors. Habitual residence is a question of fact. As set out in Bearisto v. Cook, 2018 NSCA 90, at paragraph 110, in relying on A.R. v. R.N. (2015), [2015] UKSC 35 (U.K.S.C.),
…It is the stability of the residence that is important, not its length or permanency…habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question.”
The role of parental intention in the determination of habitual residence depends on the circumstances of each individual case: Balev, at para. 45. However, the circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children: Balev, at para 45, also see Mercredi, at paras. 55-56; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1, at para. 54; L.K., at paras. 20 and 26-27. There is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child: Balev, at para. 46. The court must avoid treating a time-limited consent agreement between the parents as a contract to be enforced by a court. Parents cannot contract out of the court’s duty to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention: Balev, at para. 73.”