Background

This case arose from an appear from a decision under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

Both parties were born in Kenya. The father lived in the United States since 2001 and the mother immigrated to Canada with her family when she was nine years old and attained Canadian citizenship.

The parties married in January 2017 and lived in the United States for the entirety of their marriage. After separating in July 2019, the mother returned to Ontario, where she had been a teacher for 10 years prior to the parties marriage, when she was 9 months pregnant. The child was born in Ontario and had never been to the United States. In January 2020, the father commenced a Hague application seeking the return of the child to the United States.

In March 2020, Justice MacPherson determined that the child was habitually residence in Ontario, that Ontario courts had the jurisdiction to determine custody and access of the child and that the child should not be returned to the United States.

The father appealed this decision on the following grounds: (1) the judge did not properly apply the hybrid approach in the habitual residence analysis; (2) the judge did not give any weight to the parties’ agreement and alleged shared intention that they would raise the child in the United States; and (3) the judge erred in considering post-removal factors which linked the child to Ontario (i.e. the child’s birth).

Analysis

The main question was where was the child’s habitual residence. Article 3 of the Hague Convention states that the retention of a child is wrongful if it contravenes a person’s custody rights under the law where the child is habitually residence immediately before the child’s removal from that jurisdiction.

Since Canada and the United States are signatories to the Hague Convention, Article 12 states that if a child is wrongfully retained, the authority in the State where the child is being retained must return the child, unless either 1 year has passed since the wrongful removal or the exceptions in Article 13 are met.

The court acknowledged that while not unprecedented, the father had a challenging case because the child had never been to the United States. For example, in a 2021 case, Harper v Smith, the court found that a child born in Scotland was habitually resident in Ontario as a result of various factors including the fact that they had a sibling in Ontario.

The Divisional Court did not agree with the father’s position that there was “parental intention” to raise the child in the United States in determining the child’s habitual residence because. Rather, the court in Balev clarified that a court must determine the focal point of the child’s life, and while parental intention may be important, a court must look to the entirety of the child’s circumstances. The Divisional Court found that Justice MacPherson had properly determined that neither the focal point of the child’s life, nor his habitual residence, could be in a country in which he had never set foot in. The Court also found that Justice MacPherson did not disregard the parties’ intentions because while the father may have had an intention to raise the child in the US, since July 2019, the mother demonstrated a contrary settled intention to raise the child in Ontario.

Finally, the court found that Justice MacPherson correctly found that there was no “removal” or “retention” because according to Article 3 of the Hague Convention: F., Re (Abduction: Unborn child), it is not possible to abduct a fetus. Furthermore, there could be no “retention” under the Hague Convention unless the child had been “habitually resident” in the United States immediately before the retention which the court found he could not have been since he had never been to the United States.

Interestingly, the motion judge also determined that even if he was wrong in concluding that the child’s habitual residence was in Ontario, the Ontario Superior Court of Justice should assume jurisdiction under s. 22(1)(b) of the Children’s Law Reform Act. The Divisional Court disagreed with this aspect of the motion judge’s decision as they found that if the child’s habitual residence was not in Ontario, then it would have been in the United States and the judge would have had no choice but to order the return of the child to the United States as a court cannot resort to provincial legislation to determine custody and access issues if there has been a finding of a wrongful removal under the Hague Convention.

Conclusion

The court concluded that the motion judge correctly held that there was no breach of custody rights to a person in the United States because the focal point of the child’s life was in Canada and as such, there could have been no removal. As such, the court dismissed the father’s appeal. This case seems to run afoul the decision in Harper v Smith, though there were other factors which distinguished this case, such as the fact that the child in that case had a sibling in Ontario.

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