Month: July 2021

“The definition of “property” casts a wide net.  It includes a tractor and construction equipment dealership business, as in Poirier v. Poirier, 2005 CanLII 38106 (ON SC), [2005] O.J. No. 4471 (S.C.), where Charbonneau J. said:

Here the dealership represents a real asset which continues not only to provide a lucrative income stream, it also continues to have a real value which can be sold, transferred or otherwise disposed.  I fail to see any unfairness.  Mrs. Poirier has her half of the value of the shares converted into a liquid asset earning interest and Mr. Poirier has his half of the value of the shares invested in a business earning business income.  It is only the parties’ respective incomes, not the divided asset, which are considered for the purpose of fixing spousal support.

The definition of “property” includes a book of business of a self-employed financial advisor:  see Mavis v. Mavis, 2005 CarswellOnt 1649 (S.C.).

The definition of “property” includes a medical practice:  see Forest v. Hill, 1991 CarswellOnt 272 (Gen. Div.).

The definition of “property” includes a real estate commission, even though the transaction closed after the date of separation: see Cosentino v. Cosentino, 2015 ONSC 271.

The Court of Appeal, in Lowe v. Lowe (2006), 2006 CanLII 804 (ON CA), 206 O.A.C. 293, dealt with the question of whether workers compensation payments ought to be included as “property” in the equalization calculation.  The parties were married in 1984 and separated in 2003.  The husband was injured in 1985 and received a permanent disability pension from WSIB in the amount of $221.15 per month for life.  The Court of Appeal began with a review of the proper way to interpret the definition of “property” in the Family Law Act. At paras. 12 – 15 the court said:

The definition of “property” in the FLA, s. 4 is admittedly broad.  It includes, for example, a stream of income derived from a trust: see Brinkos v. Brinkos (1989), 1989 CanLII 4266 (ON CA), 69 O.R. (2d) 225 (Ont. C.A.).  However, the definition of property is not without limits.  In Pallister v. Pallister (1990), 1990 CanLII 12272 (ON SC), 29 R.F.L. (3d) 395 (Ont. Gen. Div.), at 404-405, Misener J. acknowledged the apparently “all-encompassing nature of the definition of ‘property’” but pointed out that as “property in law is simply a right or collection of rights” identified by “no single criterion or even a discrete number of criteria”, interpretation is required to contain the category of property within limits appropriate to achieve the purpose and object of the legislation as a whole:

It seems to me therefore that when the word appears in legislation defined in the broadest possible way, the limits are to be found through a consideration of the scope of that legislation, and the objects it seeks to accomplish.  If the definition of the right or rights as property is consistent with the scheme of the legislation and advances its objects, then it should be so defined.  If either of those attributes is absent, then, unless the right or rights under consideration fall within a category that has been legally recognized as property heretofore, it should not be so defined.

I agree with this approach.  It is consistent with the “modern approach” to statutory interpretation, set out in R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4^th ed. (Toronto: Butterworths, 2002) at p. 1 and adopted by the Supreme Court of Canada (see Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559 (S.C.C.) at para. 26):

the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

As Misener J. put it at 406, this purposive and contextual method of statutory interpretation allows “the courts to insure [sic] that the broad definition employed is kept within the bounds of the scope of the Act.”  In keeping with the “modern” approach to statutory interpretation, s. 4 should not be read as including any and every interest, even those bearing no relationship to the marriage partnership, simply because that interest is not specifically excluded.  While the scheme of the FLA is to give a broad definition to property and then exclude certain specific types of property, I agree with Misener J. that the definition of property itself must be given meaningful content and that meaningful content imposes limits on the definition of property limits apart from the specific exclusions.  Misener J. held, at 405, that the wife’s monthly benefits from an Armed Forces Disability Pension, found on the facts to amount to a permanent pension, were not “property” within the meaning of s. 4:

The Family Law Act purposely eschews any attempt to equalize all the assets owned at the date of separation. Rather it seeks only to equalize the assets the accumulation of which occurred during the marriage, and then only those assets that can fairly be said to bear some relationship to the partnership that the marriage is said to create.  Accordingly, there is provision in Section 4(1) for the deduction of the value of property owned on the date of the marriage on the ground that that value was acquired prior to the marriage, and in Section 4(2) for the exclusion of property acquired by gift or inheritance after the date of the marriage and for the exclusion of the right to damages for personal injuries suffered after the date of the marriage, on the ground that the acquisition of that property bears no relationship to the marriage partnership.

The disability pension bore no relationship to the marriage partnership but rather arose because of a disability that impeded the recipient’s capacity to earn a livelihood.  It followed, reasoned Misener J., that the stream of benefits to be received post separation should not be capitalized and included as family property for purposes of equalization.  The benefits would be taken into consideration with respect to spousal support, but they fell outside the category of “property” and could be distinguished from a pension earned as part of a spouse’s remuneration during the marriage.

The distinction in Lowe was between income and property.  In this case, the income received by Abitbol PC is based on contracts between Mr. Abitbol and his clients.  Although the amount payable is calculated as a percentage of WSIB benefits received by the clients, the character of the amount payable to Abitbol P.C. does not change.  In this case, the contracts are akin to Accounts Receivable.  They are payable under contract.  They are not uncertain and they are not discretionary.”

Abitbol v. Abitbol, 2020 ONSC 4619 (CanLII) at 24-29

“Section 23 (of the Children’s Law Reform Act) sets out a serious harm exception to the limits on Ontario’s jurisdiction to make custody and access orders established by ss. 22 (jurisdiction) and 41 (enforcement of extra-provincial orders):

Serious harm to child

23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.

This court has determined that the serious harm analysis under the CLRA is less stringent than the “intolerable situation” test under the Hague Convention. Laskin J.A. came to this conclusion in Ojeikere, at paras. 59-61 because of the different wording used in the CLRA and also:

… because under the preamble to the Convention all signatories accept and are “firmly convinced that the interests of children are of paramount importance in matters related to their custody”. Signatories have accepted this principle and its enforcement by their agreement to adhere to their reciprocal obligations under the Convention. In Hague Convention cases Ontario courts can have confidence that whatever jurisdiction decides on a child’s custody it will do so on the basis of the child’s best interests. Ontario courts cannot always have the same confidence in s. 23 cases … Some non-signatory countries may do so; others may not.

In Ojeikere, Laskin J.A. took a holistic approach to the determination of serious harm and concluded that, based on a combination of factors, the children were at risk. He considered: (i) the risk of physical harm; (ii) the risk of psychological harm; (iii) the views of the children; and (iv) the mother’s claim that she would not return to the habitual residence even if the children were required to do so.

Here, the application judge determined that Ontario could not exercise jurisdiction to make custody and access orders because she was not satisfied on a balance of probabilities that the children would suffer serious harm if returned to Kuwait. In coming to this conclusion, she discounted the children’s evidence on the basis that it was the product of the mother’s inappropriate influence. She made this assessment in the face of uncontradicted evidence from three separate OCL experts that the children’s views were in fact independent. She did not explain why this expert evidence should be rejected. This was an error.

The right of children to participate in matters involving them is fundamental to family law proceedings. Canada has adopted the Convention on the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of best interests – which is engaged in all child-related matters – must incorporate the child’s view.”

         M.A.A. v. D.E.M.E., 2020 ONCA 486 (CanLII) at 42-46

“Subrule 19(11) directs a consideration of any legal privilege that might operate to exclude the production sought. The Attawapiskat FN raised privacy concerns for all family members and argued the release of the records would cause prejudice to the parents.  Yet none of the parties squarely addressed the question of legal privilege or provided the court with the applicable law.

A legal privilege aimed at protecting a privacy interest in a communication, document or record is well established in the common law.  Its principles have been considered and elaborated by the Supreme Court of Canada in several contexts. See:  Slavutych v. Baker et al., 1975 CanLII 5, SCC; R v. Gruenke, 1991 Can LII 40 (SCC); A. (L.L. v. B.(A.), 1995 Can LII 52 (SCC); and M.(A.) v. Ryan, 1997 Can LII 403 (SCC)( “Ryan”).

In Slavutych v. Baker et al., supra, the Supreme Court adopts the 4-part Wigmore test to articulate the approach for establishing a case- by- case privilege. The SCC’s expression of this test in Ryan, at para. 20 is as follows:

First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. Finally, if all these requirements are met, the court must consider whether the interests served in protecting the communication from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.

The court in Ryan sets out a number of principles including:

(1)  The law of privilege must evolve to reflect the social and legal realities of our time. This means the common law of privilege must be developed in accordance with Charter values, such that existing rules are scrutinized to ensure they reflect the values the Charter enshrines. (See paras.  21 – 22)

(2)  Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. (See para. 37)

(3)  It is not essential for the court to examine every document to assess the claimed privilege. (See para. 39); and

(4)  An all or nothing approach to production should be rejected in favour of partial privilege and companion tailor-made production orders that include provisions for redaction, and limiting reproduction and dissemination. (See para. 33)

In G.(L.) v. B.(P)., 1996 Can LII (ONCJ), the court concludes the first branch of the Wigmore test is not satisfied in relation to child protection records, noting the relationship between a parent and the society is not a confidential one. As Brownstone J. puts it at para. 12:

The relationship and dynamic between parents and the society is complex and can oscillate between one of voluntariness, in which guidance, counselling and assistance are sought and provided, to one in which parents co-operate with the society in order to avoid court proceedings, to a highly adversarial one where the society seeks to remove children from their parents. Given this reality, I cannot see how society workers could give a parent any assurance of confidentiality in respect of communications regarding the children, when at any time such information might be relied upon by the society in a protection proceeding. A parent such as the respondent who has been the subject of investigations by the society could not have any reasonable expectation of privacy.”

M.M-A., P.A., M.D. and A.D. v. E.L. v. Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597 (CanLII) at 35-39

“Where there is a status-quo arrangement, however, courts have been clear that such arrangements should be respected in order to provide stability in the lead-up to a trial. In Coe v. Tope, 2014 ONSC 4002, at para. 25, Justice Pazaratz explained that parenting determinations at temporary motions meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages in the process.  Pazaratz J. held that the status quo should ordinarily be maintained until trial unless there is material evidence that the children’s best interests demand an immediate change.

In Mott v. Green, 2020 ONSC 3761, Bondy J. summarized the case law on status quo parenting arrangements as follows (at paras. 38-39):

[38] The best interests of the children are to be considered in the context of the litigation. The issue before me is interim custody or residency. “[A]ny temporary order granted is always intended only to stabilize separated parties’ circumstances until trial, when a full and complete consideration can be conducted…” (see Sellick v. Bollert, 2004 CanLII 18894 (ON SC), [2004] O.J. No. 2022, 4 R.F.L. (6th) 185, at para. 16). “Stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children” (see Donley v. Donley, [2008] O.J. No. 3445, 51 R.F.L. (6th) 164, at para. 91; Kimpton v. Kimpton, [2002] O.J. No. 5367; Dyment v. Dyment, 1969 CanLII 544 (ON SC), [1969] 2 O.R. 631; Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331 at pp. 344-5; and Lancaster v. Lancaster (1992), 1992 CanLII 14032 (NS CA), 38 R.F.L. (3d) 373).

[39] “In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change” (see: Madill v. Madill, 2014 ONSC 7227, [2014] O.J. No. 5952, at para. 31; Grant v. Turgeon (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton; and Easton v. McAvoy, 2005 ONCJ 319). The onus is on the party seeking to disturb a status quo arrangement with respect to the custody of children” (see Donley v. Donley, para. 91, and Norland v. Norland, [2006] O.J. No. 5126, 2006 CarswellOnt 8253).”

Al Tamimi v. Ramnarine, 2020 ONSC 4558 (CanLII) at 36-37

“Therefore, a court must first apply trust principles to determine ownership before turning to the exclusions listed in s. 4(2) [of the Family Law Act]. This is supported by the language of s. 4(2), which provides: “The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property . . .” (emphasis added). A spouse cannot exclude property that is beneficially owned by someone else.

It must be stated that, in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act; the spouse who legally owns an asset will ordinarily share half its value with the other spouse as a result of the equalization provisions under the Act. However, a fair and contextual reading of the equalization and net family property provisions of the Family Law Act ensures that married spouses are not deprived of equitable remedies they would otherwise have available to them because, as noted above, ownership issues — equitable or otherwise — are to be determined before the net equalization payment exercise is undertaken.”

            McNamee v. McNamee, 2011 ONCA 533 (CanLII) at 65-66

“Persons who are married or intend to marry may agree regarding their rights and obligations during and after the marriage in a marriage contract, which is one form of domestic contract: Family Law Act, s. 52.

A domestic contract prevails over the Act unless the Act provides otherwise: s. 2(10). A number of provisions of the Family Law Act permit a court to set aside all or part of a marriage contract, two of which are relevant to this appeal.

First, in the context of an application for spousal support, s. 33(4) gives the court the power to set aside a provision in a marriage contract that waives or reduces the right to support in three enumerated situations, including where the provision results in unconscionable circumstances.

Second, s. 56(4) allows a court to set aside an entire marriage contract or any provision in it, on application. That provision states:

56(4) A court may, on application, set aside a domestic contract or a provision in it,

(a)   if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b)   if a party did not understand the nature or consequences of the domestic contract; or

(c)   otherwise in accordance with the law of contract.

There is no limitation period provided in the Family Law Act for setting aside all or part of a domestic contract under s. 56(4), although that section specifically contemplates a court application for such relief. There is also no limitation provided for setting aside a spousal support provision of a marriage contract under s. 33(4), but that determination is made as part of a spousal support application for which there is no limitation period, as provided in s. 16(1)(c) of the Limitations Act.

Because the Family Law Act is silent as to the limitation period that applies to an application to set aside a marriage contract or a provision in it, one must look to the Limitations Act to determine which provisions of that Act, if any, apply. In this respect, I do not share my colleague’s view that the provision establishing the limitation period for seeking equalization should be read to also apply to an application to set aside a marriage contract under s. 56(4) of the Family Law Act. The fact that the Family Law Act does not provide a limitation period for an application to set aside a marriage contract under s. 56(4) is, in my view, a clear legislative signal that the Limitations Act is to apply.

…

I conclude that a proceeding under s. 56(4) of the Family Law Act comes within s. 16(1)(a) of the Limitations Act. There is no limitation period for bringing the proceeding for a declaration setting aside a marriage contract, whether as a stand-alone matter or if the proceeding also claims other family law relief. The other relief remains subject to the applicable limitation periods, including the residual discretion of a family court to grant extensions of time under s. 2(8) of the Family Law Act. In this case, those limitation periods are six years for the husband’s equalization claim, and there is no limitation period for his spousal support claim.

This result also works seamlessly within the limitation structure of the Family Law Act, because it does not add a new, shorter limitation period of two years, which would disrupt the longer time spouses have been given to resolve their affairs. It does not interfere with the philosophy of the Act, which is to give more generous time periods for separating spouses to resolve their claims for equalization and spousal support.”

         Kyle v. Atwill, 2020 ONCA 476 (CanLII) at 33-38 & 57-58

“Section 5(6) of the Family Law Act (“the Act”) permits the court to adjust a presumptive equalization of spouses’ net family properties in exceptional circumstances.

5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

Only sections 5(6) (e) and (h) are relevant to this matter.

Cohabitation less than five years (s. 5(6)(e))

Three findings are needed before the court may exercise its discretion under this provision:

(a)  That the parties cohabited for less than five years;

(b) That the presumptive amount to be paid is disproportionately large in    relation to the period of cohabitation;

(c)  That equalizing the net family property would be unconscionable.

There is no factual dispute that the parties cohabited for less than five years and slightly more than three years: there was no evidence that they cohabited before marriage.

As for whether an equalization payment is disproportionately large, there is no formulaic consensus in the case law. Typically, proportionality under this provision is co-related to the nature of the property giving rise to the equalization payment as in the case of a matrimonial home brought by one party to the marriage and for which no deduction is allowed if owned on the valuation date (Gomez v. McHale): 2016 ONCA 318 CanLII and, more broadly, financial contributions to the marriage by each party. Spousal misconduct should not be relevant.

…

In Serra the court held that once the “unconscionability” threshold is crossed, a court should exercise its discretion fairly and equitably according to the circumstances of the case: 2009 ONCA 105 at 71. Where s. 5(6)(e) has been found to apply, a mathematical formula, such as prorating the presumptive equalization payment to the period of cohabitation less than five years “may be helpful in some cases” but should not displace a broader consideration of the factors linking the parties’ marital contributions to the property giving rise to the equalization payment: Gomez v. McHale, at 12.”

Jayawickrema v. Jayawickrema, 2020 ONSC 4444 (CanLII) at 8-12 & 19

“In Noriega v. Litke, 2020 ONSC 2970, Justice Price emphasized both the subjective and objective elements of the test for a restraining order and adopted the reasoning of Dunn J. in Khara v. McManus, [2007] O.J. No. 1868, (O.C.J.) who described the test for a restraining order at paragraph 33 as follows:

…it is not necessary for a respondent to actually have committed an act, gesture, or words of harassment, to justify a restraining order.  It is enough if an applicant has a legitimate fear of such acts being committed … However, an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant.  A restraining order cannot be issued to forestall every fear of insult or possible harm, without compelling facts.  There can be fears of a personal or subjective nature, but they must be related to the respondent’s action or words. A court must be able to connect or associate a respondent’s actions or words with the applicant’s fears.  [emphasis added]

…

In Yenovkinav v. Gulian, 2019 CarswellOnt 21614 (S.C.J.), Justice Kristjanson considered the type of evidence required for an applicant to establish subjective reasonable grounds to fear as follows:

A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible impulsive behaviour with the objective of harassing or distressing a party.  There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement.  See: Purewal v. Purewal, 2004 ONCJ 1195.”

         Smith v. Reynolds, 2020 ONSC 4459 (CanLII) at 109 & 111

“Domestic violence will often give rise to concurrent proceedings in criminal and family court. The family court may be concerned with child protection litigation or issues of custody and access in matrimonial disputes. Criminal and family proceedings are defined by different objectives and governed by different rules. Yet, there are important points of convergence. Where family violence is alleged, or established, the courts must consider the risk of harm posed by the offender to others. Whether it be criminal, child protection or matrimonial litigation, questions of contact and association are often in issue. The assessment of risk is a complicated and imperfect calculus. The more information that can be made available to a court, the better the decision will reflect the realities of the family unit. Of course, at a criminal trial, there are restrictions on admissibility of evidence that may not apply in Family Court. However, when the issue is one of bail, or sentence, or variation of a probation order, the law accommodates a more flexible approach to the receipt of information.

If criminal and family courts are dealing with the same factual issues, affecting the same family, one might expect there to be a mechanism for the sharing of information between the two sectors. Yet, there tends to be little interaction between these systems. The criminal and family courts seem to operate as separate silos, through which cases move vertically, but not horizontally, toward completion. The silo approach or “two solitudes” model does a disservice to the administration of justice. It can lead to conflicting rulings and incomplete records. Important information and evidence can fall through the cracks. In the worst case scenario, the lack of coordination might result in the recurrence of serious violence. As noted in Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems, Vol. 1, the Report of the Federal-Provincial-Territorial (FPT) Ad Hoc Working Group on Family Violence (Ottawa: Dept. of Justice Canada, November 2013) [“FTP Report”]:

Because the system is fragmented and there is a lack of communication, sometimes, no one actor has a full appreciation of the nature of risk to victims.

. . .

Numerous domestic violence death reviews, inquiries and coroners reports have cited the lack of coordination between officials operating in these systems as a contributing factor in tragic family homicides.

The lack of coordination between criminal and family courts has been the subject of academic commentary: see e.g. Dr. Linda C. Neilson, Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems (Ottawa: Dept. of Justice Canada, 2013) [“Enhancing Safety“]; Joseph Di Luca, Erin Dann & Breese Davies, Best Practices where there is Family Violence: Criminal Law Perspective (Ottawa: Dept. of Justice Canada, 2013) [Di Luca, Dann & Davies]; Nicholas Bala & Kate Kehoe, Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective (Ottawa: Dept. of Justice Canada, 2015). It has also been the subject of study by the Department of Justice, as evidenced by the report cited above. It is beyond the scope of this ruling to engage in a comprehensive discussion of the issue. Suffice to say that this case is one in which the silos are firmly in place. There is no clear mechanism to allow me access to the evidence heard at the child protection proceedings.”

R. v. S.S.M., 2018 ONSC 4465 (CanLII) at 51-53

“There is no definition of “habitual residence” in the Hague Convention. It is a question of fact to be determined by the court.

The approach to be taken by courts in determining habitual residence was recently restated by the Supreme Court of Canada in Balev.  The court considered the two approaches being used by courts in Ontario to determine habitual residence: the dominant “parental intention approach” and the “child-centered approach”, which focused on the child’s connections with the state. The Supreme Court of Canada concluded that “habitual residence” should be determined by using a “hybrid approach” and stated at para. 43:

On the hybrid approach to determining habitual residence, 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 considers 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.

Under the hybrid approach, instead of focusing primarily on either parental intention or the child’s actual acclimatization, the judge determining habitual residence must look at all relevant considerations arising from the facts of the case.

Considerations include but, are not limited to, the duration, regularity, conditions, and reasons for the child’s stay in 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: Balev at para. 44. The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: Balev at para. 47. 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.

Although the hybrid approach requires the court to consider all the circumstances, the court emphasizes that it is the habitual residence of the child at the time immediately prior to the wrongful removal or retention that is relevant.

The Supreme Court of Canada concluded that the hybrid approach fulfils the goals of prompt return by:

a.  deterring parents from abducting the child in an attempt to establish links with a country that may award them custody;

b.  encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence; and

c.  protecting the child from harmful effects of wrongful removal or retention. (para. 59)

In Balev, the parties married in Ontario and moved to Germany, where their two children were born. The children were struggling at school, so the father consented to the children moving to Canada with their mother for the school year. After the consent period lapsed (i.e. the school year was over), the children remained in Ontario with their mother and the father requested their return under the Hague Convention. The court had to determine if the children were habitually resident in Germany or Canada at the time of the wrongful retention.  The question before the Court in Balev was whether a child’s habitual residence can change while he or she is staying with one parent in another country under the time-limited consent of the other.  Using the hybrid approach, a judge may consider that the intention of the parents was that the move would be temporary and the reasons for that agreement but should also considers all other evidence relevant to the children’s habitual residence. In Balev, the consideration was that the children had lived in Ontario, with their father’s consent, for the school year, which may have changed their habitual place of residence from Germany.  The facts in Balev are quite distinguishable from the case before this Court.

The Mother in the case before me relied heavily on Balev for the proposition that I must consider the children’s close ties to Ontario and find that their place of habitual residence was Ontario. Balev does not stand for the proposition that the children’s circumstances following the improper retention must be considered.  Balev stands for the proposition that if the children had time-limited consent to move to country B, the court can consider their circumstances in country B.  It does not stand for the proposition that the court must also consider the circumstances after the alleged wrongful removal or retention (which is expressly addressed in the Hague Convention itself).”

            Knight v. Gottesman, 2019 ONSC 4341 (CanLII) at 26-33