Balev v. Baggott, 2016 CarswellOnt 14331 (Ont. C.A.)

In this decision by the Ontario Court of Appeal, the Court reversed the Divisional Court’s finding that the children’s habitual residence was Ontario noting that the decision was contrary to the purpose of the Hague Convention. The mother travelled to Ontario from Germany with two young children, with the time-limited consent of the father. On appeal, the central issue was whether the Divisional Court erred in concluding that the habitual residence of the children had changed by the time the mother refused to return them to Germany.

Background

The parties are Canadian citizens. In 2001, they moved to Germany and attained permanent resident status. The parties have two children, born 2002 and 2005 respectively. Both children were born in Germany and they are Canadian citizens but not German citizens.

Prior to April 2013, the children had lived and attended school in Germany, with the exception of two periods during which the children were in school in St. Catherine’s, Ontario for approximately one year.

In 2011, the parties began to experience marital difficulties and separated. Following same, the father was awarded interim custody of the children. However, the parties resumed cohabitation in 2012.

In April 2013, the parties agreed that the mother would temporarily take the children to Canada to attend school as they were having difficulty in school in Germany. At the mother’s request, the father signed a “Consent Letter for Children Traveling Abroad” confirming his consent to visit Canada from July 5, 2013 to August 15, 2014. The father later signed a “notarized letter” transferring physical custody to the mother for the relevant period. The father claimed that he only signed the notarized letter because the mother informed him that it was necessary in order to enroll the children in a Canadian school.

On April 19, 2013, the mother and the children arrived in Ontario and they have remained here since then. The children believed that they were in Canada for a limited time.

In March 2014, the father attempted to revoke his consent and in June 2014, before his consent was set to expire in August 2014, he filed a Hague Convention application at the Superior Court of Justice seeking an order returning the children to Germany.

There was a 10-month delay in the proceedings at the Superior Court of Justice while the father sought relief in Germany. First, the father brought a custody application from which the first instance court made an interim order that the children should remain with their mother. The father’s appeal was dismissed on the ground that German courts lacked jurisdiction because the children were not German citizens. As such, the parties withdrew the custody application.

The father then commenced a Hague Convention Application in Germany. Following same, both the first instance court and the appellate court held that the children were no longer habitually resident in Germany, thus the Hague Convention application could not succeed.

At the Superior Court of Justice, the Application judge held that the mother wrongfully retained the children in Canada when she refused to return the children to Germany after the father’s consent had expired. Therefore, the application judge ordered that the children return to Germany pursuant to Article 12 of the Hague Convention and s. 46(5) of the CLRA.

On appeal to the Divisional Court, the court held that the application judge erred in finding that the habitual residence of the children was Germany. Rather, the court held that the habitual residence changed from Germany to Ontario during the consensual temporary travel period. The Court also heard that the Hague Convention did not apply. Ultimately, the Divisional Court set aside the application judge’s decision and dismissed the father’s Hague Convention application.

Analysis

The issue on further appeal is whether the Divisional court erred in including that the habitual residence of the children had changed during the time-limited consent period of their stay in Ontario.

The Court of Appeal began with an overview of the purpose of the Hague Convention. The Court noted that a Hague Convention application does not involve the best interests of the child test. Rather, the application simply requires the judge to decide whether the child has been abducted or wrongfully retained. The Court further noted that the Hague Conventionestablishes a presumption in favour of ordering the child’s return under Article 12. If an order for return is made, the court of the requesting jurisdiction must determine the issue of custody.

With respect to habitual residence, the court analyzed Article 3 of the Hague Convention, noting that to determine if the mother’s retention breached the father’s custody rights under Article 3, the court must identify the children’s habitual residence before the retention.

Habitual residence is not defined under the Convention but in Korutowska-Wooff v Wooff (2004) 5 RFL (6th) 104, the Ontario Court of Appeal adopted the following test:

• The question of habitual residence is a question of fact to be decided based on all of the circumstances;
• The habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;
• A “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
• A child’s habitual residence is tied to that of the child’s custodian(s).

Based on the above-noted test from Korutowska, the Court held that there is no question that before the children came to Canada in April 2013, their habitual residence was Germany. However, the critical question before the court was where the children’s habitual residence was immediately before the expiry of the father’s time-limited consent in August 2014.

The Court noted that Ontario courts have uniformly held that a parent’s consent to a time-limited stay does not shift the child’s habitual residence (Unger v Unger, 2016 ONSC 428). However, time-limited consensual stays are more common for educational purposes.

The Court maintained that the Divisional court erred in deciding that a child can become habitually resident  in a jurisdiction in which the child resides with the time-limited consent of the other parent, notwithstanding a long line of authority to the contrary. However, the Court did not close the door to the possibility that there may be cases in which a consensual time-limited stay is so lengthy that it becomes time-limited in name only, and the child’s habitual residence can be changed.

The Court went on to discuss the fact that the children may have settled in their new environment in Ontario. However, the Court noted that decisions of the Supreme Court of Canada have held that evidence of settling in is not relevant if the application is brought within one year of the wrongful detention removal.

Ultimately, the court held that the elements of Article 3 of the Hague Convention had been satisfied. Namely, the children habitually resided in Germany prior to the wrongful retention on August 15, 2014; the retention breached the father’s custody rights under German law; and the father was exercising custody at the time of the retention. Further, the Court held that none of the exceptions of the Hague Convention apply, thus the children must be returned to their habitual residence in Germany.

Notably, the Court expressed sympathy for the mother given that she felt that it is in her children’s best interest to remain in Canada. Despite same, the Court noted that this particular case raised legal issues that transcend the interests of two young children and affect the interests of countless children and their parents. In the end, the mother’s actions were a violation of the father’s custodial rights.