“Child Abduction” is not just fodder for the documentaries about human trafficking on Netflix. “Child Abduction” also refers to the regular occurrence of one parent fleeing their home jurisdiction or refusing to return to their home jurisdiction with their children. The Hague Convention was written to provide the signatory countries with specific parameters to determine which jurisdiction should be making decisions about the custody and access of a child if there has been an allegation that a child has been removed and/or withheld from their “habitual residence”.
Article 16 of the Hague Convention specifically directs that a determination of jurisdiction does not include an analysis of the merits of claims for custody or access – meaning, the court deciding upon the issue of jurisdiction is only tasked with making a decision about which court, the one here in Canada or the one abroad, will ultimately make decisions about the custody and access of the child. The issue of jurisdiction is very narrow in scope, but unfortunately, these previously clear waters have been muddied in Ontario recently.
Recent decisions by Ontario courts have been uneven in regards to the application of the Hague Convention when specifically dealing with parents who have previously agreed upon the children residing in another country with one parent for a specified duration (ie: for school, job secondments, prolonged vacations or visits with the separated parent). Some courts, including the Court of Appeal, have focused on the strict interpretation of “habitual residence” to find that the court in the country from where the child came is the appropriate court to make decisions regarding custody and access. Other courts, unfortunately, have reasoned that a prolonged stay in Ontario results in acclimatisation to this jurisdiction and, thus, Ontario has the authority to make decisions regarding custody and access. This, it would seem, is a veiled adjudication of the merits of the custody and access issues as opposed to strictly a determination of jurisdiction.
In light of this conflicting case law and the significance of these decisions upon families in Ontario and abroad, the Supreme Court of Canada has granted leave to appeal in one such case. In Balev v. Baggott, the left-behind father (in Germany) alleges that the mother wrongly withheld the children in Ontario beyond the period for which he gave consent for them to remain here. The Superior Court of Justice and the Court of Appeal agreed with the father that Germany retained jurisdiction pursuant to the Hague Convention, while the Divisional Court disagreed and held that Ontario was the proper forum for this case. The case will be heard on an expedited basis by the Supreme Court of Canada.
Stay tuned and contact us if there are any plans in for you or the other parent to be with the children in another jurisdiction for a prolonged period of time. We can assist you to try to avoid the conflict and confusion that arose in these cases.