“The purpose of the Hague Convention is to secure the prompt return of a child wrongfully removed or wrongfully retained. Article 1 provides:
The objects of the present Convention are –
-
-
- a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
-
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Wrongful removal or retention
Not every removal or retention is wrongful. As per art. 3 of the Hague Convention, the removal or the retention of a child from her habitual residence is wrongful when:
a) it is in breach of rights of custody attributed to a person … under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
A removal or retention is wrongful if the child was habitually resident in the country immediately before the alleged wrongful removal or retention. Therefore, habitual residence is central to the Hague Convention because it defines when a removal or retention is wrongful: see Ludwig, at para. 22.
Habitual residence
The approach to habitual residence was changed in 2018 when the Supreme Court of Canada issued its decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] S.C.R. 398. The parental intention model previously used was replaced with a hybrid model. The hybrid model considers parental intention, but also the circumstances of the child.
This court’s decision in Ludwig, incorporating the changes from Balev, outlined a two-step process to determine habitual residence. At the first stage, the court is to determine the date of the alleged wrongful removal or retention. At the second stage, the court is to look to all the circumstances, including parental intention and the circumstances of the child, to determine the “focal point of the child’s life”, having regard to the child’s links to both countries and the circumstances of the move from one country to the other. The application judge’s conclusion is entitled to deference.”