August 19, 2021 – “Habitual Residence” & Balev

“The Mother’s lawyer argued that because the child lived primarily with her mother, her place of habitual residence was with her mother, regardless of where she lived.  She further argued one parent can change a child’s habitual place of residence and refers to the hybrid approach set out recently by the Supreme Court of Canada: Office of the Children’s Lawyer v. Balev, 2018 SCC 16.  The legal point she has missed is that the court considers the child habitual place of residence immediately prior to the removal, not subsequent to the removal.  Further, in Balev, the children had lived in Germany and moved to Ontario for the school year with both parties’ consent.  After the consent period lapsed, the children remained in Ontario.  The question 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. In the case before me, the father did not consent to Noemi moving to Canada and did not even know where she was for quite some time after her removal.  The facts are entirely different.”

         Monari v. Ojo, 2019 ONSC 4879 (CanLII) at 8