“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 unilaterally change a child’s habitual residence, or that a parent’s consent to a time-limited stay 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.”
Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (CanLII) at 73