October 15, 2019 – Summarizing Balev

“The Supreme Court of Canada has recently considered and provided direction about applications pursuant the Hague Convention in Office of the Children’s Lawyer v. Balev2018 SCC 16 (CanLII).

The majority of the court noted, at para. 28, that,

the heart of the Hague Convention’s prompt return mechanism is Article 3….Crucially…the concept of habitual residence is not defined in the treaty,

and further, at para. 29,

If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply.  These exceptions can be summarized as follows:

1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

2) There is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3) The child of sufficient age and maturity objects to being returned (Article 13(2));

4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and

5)  The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

The majority considered three different approaches for determining a child’s habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach.

With respect to “the parental intention approach”, the majority noted that this approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives.

In relation to “the child-centred approach”, the majority observed, at para 41, that,

The child-centred approach determines a child’s habitual residence Article 3 by the child’s acclimatization in a given country, rendering the intentions of the parents largely irrelevant.  It is backward-focused, looking to the child’s connections with the state, rather than the more forward-looking parental intention model.

Concerning “the hybrid approach”, which was adopted, the majority stated,

[The] hybrid approach holds that instead of focusing primarily or exclusively on the either parental intention or the child’s acclimatization, the judge determining habitual residence under Article 3 must look to all relevant considerations arising from the facts of the case (para. 42).

[The] application judge determines 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…The judge must consider all relevant links and circumstances – the child’s 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 (para. 43).

Considerations include “the duration, regularity, conditions and reason for the [child’s] stay in the territory of [a] Member State” and the child’s nationality…No single factor dominates the analysis, rather, the application judge should consider the entirety of the circumstances…Relevant considerations may vary according to the age of the child concerned: where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of” (para. 44).

The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children…However, recent cases caution against over-reliance on parental intention…parental intention “can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence”…It “cannot as a general rule by itself be crucial to the determination of the habitual residence of a child…but constitutes an ‘indicator’ capable of complementing a body of other consistent evidence”…The role of parental intention in the determination of habitual residence “depends on the circumstances specific to each individual case” (para. 45).

The majority added,

It follows that there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of a child.  Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all of the relevant circumstances in determining where the child was habitually resident at the date of wrongful retention or removal (para. 46).

The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions…It requires the application judge to look to the entirety of the child’s situation.  While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed.  The temptation “to overlay the factual concept of habitual residence with legal constructs” must be resisted (para. 47).

[As to] the question of whether under the hybrid approach a child’s habitual residence can change while he or she is staying with one parent under the time-limited consent of the other…Applying the hybrid approach, the application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement.  But the judge also considers all other evidence relevant to the child’s habitual residence.  The court must do so mindful of the risk of overlaying the factual concept of habitual residence with legal constructs like the idea that one parent cannot shift the child’s habitual residence.  The court must also avoid treating a time-limited consent agreement as a contract to be enforced by the court.  Such an agreement may be valuable as evidence of the parents’ intention, and parental intention may be relevant to determining habitual residence.  But parents cannot contract out of the court’s duty, under Canadian laws implementing the Hague Convention, to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention or removal (paras. 72 and 73).

The majority also stated,

The hybrid approach favours choice of the most appropriate forum.  It focuses on the factual connection between the child and the countries in question, as well as the circumstances of the move – considerations that “mirror the closest connection test often used in determining the forum conveniens”…This allows for custody and access disputes to be adjudicated in the most convenient forum with the best available evidence…The hybrid approach thus avoids the problem that a child may be found to be habitually resident in a country with which the child has little or no connection (para. 64).

There is no conflict between the hybrid approach and the “settled in” exception under Article 12…[which] comes into play only after habitual residence is determined, and functions to provide a limited exception to the requirement that a child wrongfully removed or retained be returned to his or her habitual residence.  It may be that the hybrid approach habitual residence favours returning the child, but that the one year period and settling in indicate that the child should not be uprooted and returned to his or her place of habitual residence (para. 66).

Nor does the hybrid approach “ignor[e] the fact that a child could develop genuine links to a new jurisdiction following a wrongful removal or retention”…Habitual residence is determined immediately prior to the wrongful removal or retention… Subsequent links are relevant only to the exception under Article 12 (para. 67).

The majority concluded,

In sum, the hybrid approach represents a principled advance on the parental intention and child-centred approaches.  It recognizes that the child is the focus of the analysis, but acknowledges that it may be necessary to consider parental intention in order to properly assess the child’s connections to a country (para. 68).

The application judge is best placed to weigh the factors that will achieve the objects of the Hague Convention in the case at hand.  In the end, the best assurance of certainty lies in following the developing international jurisprudence that supports a multi-factored hybrid approach (para. 70).

Thus, this court has been instructed to take the hybrid approach to the determination of habitual residence by means of a factual contextual analysis.”

Haq v. Malik, 2018 ONSC 6047 (CanLII) at 63-72