“The Hague Convention sets out the rules that apply to the parental abduction of a child across international borders and seeks to remedy the serious harms caused by international child abduction: Children’s Lawyer v. Balev, 2018 SCC 16 at paras. 23-24. The Hague Convention is aimed at enforcing custody rights and securing the prompt return of children to their country of habitual residence.
Articles 3 and 4 of the Hague Convention require the Applicant/Mother to satisfy three conditions prior to me ordering the mandatory return of the child, namely, that:
a. the child was habitually resident in a contracting state immediately before any breach of custody or access rights;
b. she has custody rights to the child; and
c. the child was wrongfully removed or retained.
If those 3 conditions are satisfied, Article 12 of the Convention mandates an order for the return of the child forthwith to the place of his or her habitual residence (save for the enumerated and narrow exceptions that are not applicable on the facts of this case).
While “habitual residence” is the sole connecting factor triggering the child’s return, the term is not defined in the Convention. The Supreme Court of Canada in Office of the Children’s Lawyer v. Balev and Baggott, 2018 SCC 16 (CanLII), [2018] 1 S.C.R. 398, held that “habitual residence” should be determined through a hybrid approach that considers “all relevant considerations” including but not limited to the parents’ intentions and the child’s interests: Balev, para. 42. The judge must determine the focal point of the child’s family and social environment immediately prior to the removal:” Balev, paras. 43 and 67. Indeed, the Court cautioned against “over-reliance” on parental intention.
The Court of Appeal for Ontario recently had an opportunity to weigh in on the proper interpretation and application of Balev in Ludwig v. Ludwig, 2019 ONCA 680. The Court of Appeal endorsed a two-step approach to determining habitual residence: first, the Court must determine the date of alleged wrongful removal; then, it must go on to consider where the child was habitually resident immediately before the date of the alleged wrongful removal.
In Ludwig, the Court of Appeal reiterated that Court may consider a variety of factors when determining habitual residence, such as: nationality, duration and conditions of stay, age of the child, parental intention, and so on. The Court of Appeal emphasized that there is no one dominating factor and the judge must consider the “entirety” of the child’s situation.”