In international child custody matters, the “habitual residence” of the child is a critical factor in determining whether there has been wrongful removal or retention of a child in another country. The Hague Convention on the Civil Aspects of International Child Abduction (which has the force of law in BC pursuant to section 80 of BC’s Family Law Act) states a child who has been wrongfully removed or retained in another country must be returned to their place of habitual residence. The underlying rationale for the Hague Convention is that disputes over custody of a child or the best interests of the child should be resolved by the courts in the jurisdiction where the child is habitually resident.
There is a long line of cases which state that neither parent can unilaterally change the habitual residence of a child without the express or implied consent of the other parent. But what happens when one parent consents to the child being abroad for a particular purpose for a particular time period – can that effect a change in the habitual residence of the child? Time-limited consensual stays for educational purposes for periods of a year or more are now common, as are visits with extended family in other countries, so it can be expected that international child custody disputes of this nature will also become more common. In Balev v. Baggott, 2016 ONCA 680 the Court of Appeal for Ontario concluded that a parent’s consent to a time-limited stay in another country does not shift the child’s habitual residence. This article will examine that case and the application of the Hague Convention in international child custody disputes.
In the Balev case, the father and mother were married in Canada in 2000. The following year, they moved to Germany where they obtained permission to live and work. Their children were born in Germany in 2000 and 2005 but are Canadian citizens. The family resided together in Germany until April 2013 when the parents separated. The father and mother agreed that the mother would return to Canada with both children for educational purposes and that they could remain there until August 15, 2014. The mother and children arrived in Canada in April 2013. In March 2014, the father purported to revoke his consent. The mother did not return the children to Germany at that point, nor did she return the children to Germany following the expiry of the father’s time-limited consent to the children living in Ontario. Neither child wished to return to Germany. The father commenced a Hague Convention application in Germany and a further one in Ontario. It was ultimately ordered that the children be returned to Germany. At that point the children had been residing in Canada for more than three years.
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty in force among some 90 countries. Its primary goal is to achieve the return of children wrongfully removed or retained from their place of habitual residence. Removal or retention of a child is wrongful when it is in breach of “rights of custody” held by a person, court, or other body, such as a child protection agency. The Hague Convention promotes a court process in which the left-behind parent applies for the child’s return. The application is heard and decided in the country where the child was taken. The court in that country applies the Hague Convention, but does not decide which parent should have custody or guardianship of the child. That issue is left to be decided by the courts of the child’s habitual residence, if the child is ordered to be returned.
To determine if the mother’s retention breached the father’s custody rights under Article 3 of the Hague Convention, the court was required to identify the children’s habitual residence immediately before the retention. It was clear that the children were habitually resident in Germany when the father gave his time-limited consent for the children to go to Canada. That finding was based upon the following specific facts: the parents had acquired permanent resident status in Germany, had resided in Germany for 12 years, had been employed, and had owned property in Germany; the lives of the children were centered in Germany prior to their departure in April 2013; and the children were born in Germany where they attended school, engaged in extracurricular activities, and had friends.
The mother argued that the habitual residence of the children had changed from Germany to Canada by the time the father’s time-limited consent expired in August 2014. The critical question for the court was this: where was the children’s habitual residence immediately before the expiry of the father’s time-limited consent in August 2014, following which the mother refused to return the children to Germany? The court affirmed the long and well-established line of authority to the effect that one parent cannot unilaterally change a child’s habitual residence under the Hague Convention. The father remained a joint custodial parent while the children were in Ontario, despite the apparent transfer of custody in the time-limited agreement. Therefore, the mother could not unilaterally change their habitual residence during that the consensual period in Canada. One parent cannot displace the custodial rights of the other by contravening the terms of an agreement to take the child to another jurisdiction for a time-limited stay. To alter the child’s habitual residence when the consent of the other parent is time-limited would effectively gut time-limited consent of any meaning. It is worth noting, however, that in deciding the Balev matter, the court did not foreclose the possibility that there may be cases where a consensual time-limited stay is so long that it becomes time-limited in name only and the child’s habitual residence has changed.
Article 12 of the Hague Convention states that “settling in” is not relevant if the application is brought within one year of the wrongful detention or removal. In other words, the degree to which the child has become settled has no bearing on a Hague Convention application filed within one year. Such factors may well influence the issue of where and with whom the child should ultimately reside, but such custodial matters are not before the court on a Hague Convention application. In Balev the father’s application was commenced well within the one-year period, so the fact that the children had settled into Ontario was not relevant when determining their habitual residence.
Article 13 of the Hague Convention provides that even if the retention is wrongful, the court may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” In Balev, the mother placed considerable weight in her submission on the views of the children. The children’s objections included matters such as too much homework in Germany, loss of friends, loss of their dog, and that “Canada feels like home.” The court concluded that the children’s objections to being returned to Germany were neither “substantial” nor had “the ‘strength of feeling” required to take the objections beyond the level of expressing a preference for one place over another. To accede to such objections would set the threshold much too low and certainly much lower than intended by the Hague Convention which provides that where there has been a wrongful retention, children shall be returned to their habitual residence unless the removing parent can establish that exceptional circumstances exist. Exceptional circumstances did not exist in the Balev case.
In ordering that the children be returned to Germany, the court had considerable sympathy for the mother, who felt strongly that it is in her children’s best interests to remain in Canada. The court also acknowledged that the children had now been in Ontario for more than three years, and that moving them back to Germany is likely to be difficult. To that, Sharpe J.A. stated as follows (emphasis added):
 It is important to remember, however, that although this case involves the interests and needs of these two young children, it raises legal issues that transcend their interests and that affect the interests of countless other children and their parents. It is also important to remember that the mother’s actions were in direct violation of the father’s custodial rights.
 In my respectful opinion, the Divisional Court’s decision would, if upheld, undermine the purpose and proper operation of the Hague Convention. To find that a child’s habitual residence can be changed by the unilateral actions of one parent during the period of a time-limited consensual absence undermines the purpose and efficacy of a carefully crafted scheme to deal with child abduction and wrongful retention. It renders time-limited travel consents essentially meaningless, and would allow one parent to lay the foundation for child abduction by obtaining a defined, temporary consent of the other parent to travel with the child.
Note that the Office of the Children’s Lawyer (“OCL”) became involved in the Balev case to help determine the children’s wishes and to represent their interests. The OCL supported the mother’s position. An appeal to the Supreme Court of Canada has been commenced by the OLC (see Office of the Children’s Lawyer v. John Paul Balev, et al.,  S.C.C.A. No. 477 (SCC)) arguing that the court’s interpretation of “habitual residence” under the Convention should be in a manner consistent with child’s s. 7 Charter rights and the right of child who is a Canadian citizen to remain in Canada under s. 6(1).
International child custody matters can be extremely complex. The breakdown of the marriage is difficult without the complications of geographical distance, jurisdictional issues, and conflicting foreign laws. Two principles are clear: first, neither parent can unilaterally change the habitual residence of a child without the express or implied consent of the other parent, and second, a parent’s consent to a time-limited stay in another country does not shift the child’s habitual residence.
Many other issues arise in international family law matters. For example, I recently discussed issues that arise with respect to giving notice of a child support claim in an international family law matter.
If you have questions about international child custody, child support, or any other family law matter, contact Onyx Law Group’s team of experienced family law lawyers at (604) 900-2538.
There are a host of additional considerations with respect to child custody and access when the child is in a different country.
“Access” is the word used in the federal Divorce Act to describe the time that a parent spends with the child who lives with the other parent (note that the BC Family Law Act doesn’t use the word access; instead it talks about contact with a child). In Chitsabesan v. Yuhendran, 2016 ONCA 103 the court confirmed that it is always in the best interests of the child to have a healthy relationship with both parents; that is equally true with respect to access when the child is in a different country and when the parents live in the same city.
The mother in the Chitsabesan v. Yuhendran matter was born and raised in England. The father was born in Sri Lanka and raised in Canada. The parties married in England in 2009. They initially lived apart before residing in Ontario. Their child was born in June 2012. The parties separated in early 2013. The court awarded sole custody of the child to the mother and allowed the mother to relocate to England with the child. The court also ordered that the father was to have access to the child to six weeks per year in one-week blocks, except for the summer when he is to have two weeks at the end of August.
When the child was three years old, the father applied to have access to the child for a block of time, from January 12, 2016 to February 4, 2016, so he could bring his daughter to Toronto to allow her to develop a close and lasting relationship with his mother (her paternal grandmother) and other paternal relatives. The father noted the significant cost of purchasing three return air tickets to exercise each one-week access period under the original order for access (three tickets are necessary since the child is too young to travel alone and he must fly to London, return with the child, fly back to London with the child and then return to Toronto alone). In addition, the father pointed out that exercising access in England is difficult because of the cost of accommodation in London.
The child’s mother opposed the requested access because it would interfere with the three-year-old child’s nursery school attendance from 8:45 a.m. to 11:45 a.m. Monday to Friday. The mother relied on the school’s policy, which stressed the importance of attending school regularly.
In ordering access for the longer block of time as requested by the father, the court stated as follows (emphasis added):
 No matter what may be the school’s policy regarding an absence for parental access, in our view it is not in the best interests of the three-year-old child to consider attendance at this half-day program more important than fostering a meaningful relationship with the child’s father and his family. It is always in the best interests of the child to have a healthy relationship with both parents. Where the parents live so far apart that access with the non-custodial parent cannot take place regularly, compelling reason should be shown why longer periods of access are not appropriate.
It was in the child’s best interests to foster a meaningful relationship with her father and his family. Given the geographical distance which made regular access by the non-custodial parent impractical, attendance at the child’s half-day nursery school was not a compelling reason to thwart the father’s request for a longer period of access.
There are additional complications when dealing with child custody and access when the child is in a different country. However, it is always in the best interests of the child to have a healthy relationship with both parents. Where the parents live so far apart that access with the non-custodial parent cannot take place regularly, compelling reason should be shown why longer periods of access are not appropriate.
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