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The Ontario Court of Appeal recently ruled on the question of whether a mother wrongfully retained her children in Canada, in breach of the father’s custody rights under German law.  The Court ordered the mother to return the children to Germany where the father lived.  As we recently commented in an article published on AdvocateDaily.com, we believe that the Court in Balev v. Baggott got it right:

The appeal dealt with an application under the Hague Convention as the father, who had “interim custody,” sought the return of his children, who were both born in Germany.

…[T]he mother came to Ontario from Germany with two young children with “time-limited consent,” unilaterally deciding to remain in Ontario, and refusing to return the children to Germany.

“The issue in this case was whether the children were habitual residents of Germany or Canada,” says Gelman, principal of Gelman & Associates. The wife essentially told her ex-husband she would return the children after a year, then she changed her mind, she says.

“No court is going to reward that kind of behaviour. The decision is really factually driven.”

Articles 3 and 12 of the Hague Convention

In making its decision, the Court of Appeal relied on Articles 3 and 12 of the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35; 19 I.L.M. 1501 (the “Hague Convention”), which read as follows:

Article 3

The removal or the retention of a child is to be considered wrongful where –

a)   it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, 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.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the children.

Schroeder v. McCormack

One day before the Court of Appeal’s ruling in Balev v. Baggott, the Ontario Divisional Court released a decision which also turned in part on Article 3 of the Hague Convention.  The Court had to determine the location in which the child was habitually resident.

The relevant background facts in Schroeder were as follows:

  • The parties’ son, Flynn, was born in Ontario in 2014, but spent much of his life outside the province; he moved with his parents to Singapore for 10 months when he was 5 months and, after returning to Canada in May 2015, the family traveled to destinations in the U.S. and Europe for three months;
  • The family returned to Canada in August 2015 and spend most of the following five months in Ontario;
  • In early 2016, the mother accepted an employment position in Denmark;
  • Before leaving for Denmark, although the parties were not separated, they signed a “parenting plan” agreement, which stated that Flynn was only visiting Denmark and that he was a resident of Ontario;  the parenting plan stated that Flynn was free to leave Denmark with the father at any time;
  • In March 2016, while the mother was on a business trip, the father brought Flynn from Denmark to Ontario without informing the mother.

After learning that the father had surreptitiously removed the child from Denmark, the mother sought and obtained an order requiring the father to return Flynn to Denmark pursuant to Article 12 of the Hague Convention.  In addition to ruling that the custody and access terms of the parenting plan were unenforceable since the parties were not separated at the time of the agreement, the application judge found that:

[Flynn] was habitually resident in Denmark and was removed from Denmark without the mother’s consent and in breach of her custodial rights.

In dismissing the father’s appeal, the Divisional Court noted that there was no reason to disturb the application judge’s conclusion on the facts that both parties intended to settle in Denmark, even if it was on a temporary basis.  As of the date the father flew Flynn to Ontario, Flynn’s habitual residence had been in Denmark.

The fact that the mother signed the parenting agreement in January 2016 did not help the father’s argument that she consented to the removal of the child from Denmark.  Even if the agreement had been enforceable, her signature in January did not constitute consent at the end of March, 2016.  The father secretly removed the child while the mother was out of the country and did not tell her anything about it.  Her reaction to learning that the child was gone was “…wholly inconsistent with her having consented to his removal.”

What Have We Learned?

Factual determinations on the issues of “habitual residence” and “custodial rights” are critical in cases like Balev and Schroeder.

Habitual Residence:

  • The question of habitual residence is a question of fact to be decided based on all of the circumstances of a case; and
  • One parent cannot unilaterally change a child’s habitual residence under the Hague Convention.

Custodial Rights:  

  • In Schroeder, the parties were not separated, and the mother had full custodial rights with respect to her son, which she was exercising;  the father could not deprive her of her custodial rights by taking the child to to Canada;
  • In Balev, the father had joint custodial rights under German law (the law of the childrens’ habitual residence), which he exercised.  The mother’s refusal to return the children to Germany deprived the father of his custodial rights under Article 3 of the Hague Convention.

To speak with experienced family law lawyers, contact Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.

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