“Prior to the Supreme Court’s decision in Balev, Ontario courts applied a parental intention approach to habitual residence. As this court explained in Korutowska-Wooff v. Wooff (2004), 2004 CanLII 5548 (ON CA), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 8, leave to appeal refused, [2005] S.C.C.A. No. 132, a child’s habitual residence was tied to that of the child’s custodians and was determined by the custodians’ “settled intention” to stay in a place for a particular purpose. Under this approach, neither parent could unilaterally change a child’s habitual residence without the other’s consent. Likewise, time-limited travel that both parents agreed to could not change the child’s habitual residence: Balev. v. Baggott, 2016 ONCA 680 (CanLII), 133 O.R. (3d) 735, at paras. 39-40, 42, rev’d 2018 SCC 16 (CanLII), [2018] 1 S.C.R. 398.
In Balev, the majority of the Supreme Court rejected both the parental intention approach and an alternative child-centred approach. The majority recharacterized parental intention as one relevant factor among many, instead of the controlling factor, and warned against “over-reliance” on this factor: at paras. 45 and 63. It specifically rejected the rules this court had adopted that one parent’s unilateral actions are incapable of changing a child’s habitual residence and that a child’s habitual residence could not change in the case of time-limited travel that both parents agreed to: at paras. 46, 72-73. However, the court also rejected the child-centred approach that the OCL had proposed in its submissions in Balev. Under this child-centred approach, parental intention would be irrelevant and the sole focus would be the child’s acclimatization in a given country: Balev, at para. 41.
Instead of the parental intention or child-centred approaches, the court adopted a hybrid model that combined parental intention and the circumstances of the children. The court stressed that under the hybrid approach, the application judge must look at “all relevant considerations,” including both parental intention and the circumstances of the children: at paras. 4, 42. The court stated that the hybrid approach would best fulfill the object of prompt return that animates the Hague Convention: at para. 59. Unlike both the parental intention and child-centred approaches, the hybrid approach would allow the court to consider all relevant factors without relying on formulaic approaches: at para. 65.
The aim of the hybrid approach is to determine 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”: at para. 43. To determine the focal point of the child’s life, the majority required judges to consider the following three kinds of links and circumstances:
1) The child’s links to and circumstances in country A;
2) The circumstances of the child’s move from country A to country B; and,
3) The child’s links to and circumstances in country B.
The majority went on to outline a number of relevant factors courts may consider in assessing these three kinds of links and circumstances. Considerations include the child’s nationality and “the duration, regularity, conditions and reasons for the [child’s] stay,” along with the circumstances of the parents and parental intention: at paras. 44-45. However, the list of relevant factors is not closed and the application judge must consider the “entirety of the child’s situation”: at para. 47. The child is the focus of the analysis and parental intention is only relevant as a tool to assess the child’s connections to a given country: at para. 68.”