Child Access & Custody: Balev v. Baggott
*Balev v. Baggott, 2016 ONCA 680
“The parties were Canadian citizens. They moved to Germany in 2001 and attained permanent resident status. Their two children were born in Germany but were not German citizens. The parties separated in 2011, and the father was awarded interim custody of the children. In April 2013, the father gave his time- limited consent to the mother taking the children to Canada so that they could attend school in Ontario. At the end of the consent period, the mother unilaterally decided to stay in Ontario and refused to return the children to Germany. The fatherâ€™s application under the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, C.T.S. 1983/35, 19 I.L.M. 1501 (the â€œHague Conventionâ€) for an order for the return of the children to Germany was allowed. The application judge found that the children were habitually resident in Germany when the mother refused to return them. The Divisional Court allowed the motherâ€™s appeal, holding that the childrenâ€™s habitual residence had changed during the time-limited consent period of their stay in Ontario and that they were habitually resident in Canada at the relevant time. The father appealed.
Held, the appeal should be allowed.
The childrenâ€™s habitual residence before they came to Canada was Germany. The fatherâ€™s consent to the time-limited stay in Canada did not change the childrenâ€™s habitual residence. The mother did not have the power to unilaterally change the childrenâ€™s habitual residence during the consent period. The Divisional Court erred in relying on s. 22(2)(b) of the Childrenâ€™s Law Reform Act, R.S.O. 1990, c. C.12 as authority for the proposition that a child can become habitually resident in a jurisdiction in which the child resides with the time-limited consent of the other parent. To apply s. 22(2)(b) to alter a childâ€™s habitual residence when the consent of the other parent is time-limited would effectively eviscerate time- limited consent of any meaning. Moreover, as the fatherâ€™s application was commenced well within the one-year period referred to in art. 12 of the Hague Convention, the Divisional Court erred by considering the fact that the children had settled into Ontario when determining their habitual residence. As the children habitually resided in Germany immediately before the wrongful detention, the fatherâ€™s custody rights under the law of Germany applied. The motherâ€™s decision to refuse to return the children to Germany deprived the father of his custodial rights under art. 3(a) of the Hague Convention. None of the exceptions under the Hague Convention applied. Therefore, the children had to be returned to their habitual residence.
Articles 3 and 12 of the Hague Convention state the following:
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.
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.
The Hague Convention has been incorporated into Ontario law by the Childrenâ€™s Law Reform Act, R.S.O. 1990, c. C.12, s. 46(2) (the â€œCLRAâ€). Section 22(2) of the CLRA provides some guidance on habitual residence:
22(2) A child is habitually resident in the place where he or she resided,
(a) with both parents;
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied con- sent or acquiescence of the other or under a court order; or
(c) with a person other than a parent on a permanent basis for a significant period of time,
whichever last occurred.
Purpose of the Hague Convention
It is important to keep in mind that a judge deciding a Hague Convention application is not determining custody or deciding what would be in the best interests of the children. The judge is simply deciding whether a child has been abducted or wrongfully retained within the meaning of the Hague Convention. If the answer to that question is yes, and if no exception contemplated by the Hague Convention is present, the child must be returned to the place of the childâ€™s habitual residence.
As this court explained in Katsigiannis v. Kottick- Katsigiannis (2001), 55 O.R. (3d) 456,  O.J. No. 1598 (C.A.), at para. 32:
Hague Convention application does not engage the best interests of the child test â€” the test that is universally and consistently applied in custody and access cases. Hague Convention contracting states accept that the Courts of other contracting states will properly take the best interests of the children into account. . . . Thus, where there has been a wrongful removal or retention, and no affirmative defence is established within the meaning of the Hague Convention . . . the children must be returned to their habitual residence.
The underlying purpose of the Hague Convention is to protect children from the harmful effects of wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence. The Hague Convention establishes a presumption in favour of ordering the childâ€™s summary return under art. 12: Thomson v. Thomson.
This court confirmed in Jackson v. Graczyk (2007), 86 O.R. (3d) 183,  O.J. No. 2035, 2007 ONCA 388, at para. 23, that the Hague Conventionâ€™s â€œunderlying rationale is that disputes over custody of a child should be resolved by the courts in the jurisdiction where the child is habitually resident; child abduction is to be deterredâ€.
If an order for return is made, it is for the courts of the requesting jurisdiction, here Germany, to determine the issue of custody.
Unilateral change of habitual residence
There is a long and well-established line of authority to the effect that one parent cannot unilaterally change a childâ€™s habitual residence under the Hague Convention. The application judge correctly described this principle, at para. 73: â€œthe case law is clear that the habitual residence of a child is the state where both parties lived together with the child, and neither parent can unilaterally change the habitual residence without the express or implied consent of the other parentâ€. As stated in Maharaj v. Maharajh,  O.J. No. 246, 2011 ONSC 525 (S.C.J.), at para. 18, â€œunless the mother can establish a shared parental intention to change the childâ€™s residenceâ€ at the time of the move to Ontario, the childâ€™s habitual residence remains unchanged: see, â€¨ also, Korutowska-Wooff, supra; and Ellis v. Wentzell-Ellis (2010), 102 O.R. (3d) 298,  O.J. No. 1987, 2010 ONCA 347, at paras. 27-33.
Time-limited consensual stays
The Ontario courts have uniformly held that a parentâ€™s consent to a time-limited stay does not shift the childâ€™s habitual residence: see Ellis v. Wentzell-Ellis; Unger v. Unger,  O.J. No. 3468, 2016 ONSC 4258 (S.C.J.), at para. 57; Webb v. Gaudaur,  O.J. No. 6081, 2015 ONSC 6956 (S.C.J.); Fulmer v. Kaleo-Fulmer,  O.J. No. 3183,  O.T.C. 581 (S.C.J.), at para. 18; Solem v. Solem,  O.J. No. 723, 2013 ONSC 1097 (S.C.J.), at paras. 37-38; and Snetzko v. Snetzko,  O.J. No. 2848, 65 A.C.W.S. (3d) 56 (Gen. Div.), at para. 25.
Time-limited consensual stays for educational purposes for periods of a year or more are now common. In Cornaz v. Cor-naz-Nikyuluw [ O.J. No. 4121, 2005 CarswellOnt 4714 (S.C.J.)], the mother brought the children to Canada from Switzerland to allow her to study for a year with the fatherâ€™s consent. The father agreed to extend that period by six months. The mother refused to return the children to Switzerland at the end of the consensual period. Glithero J. ordered the return of the children, holding, at para. 57:
One parent cannot change the habitual residence of a child without the agreement of the other parent having custody rights. . . . The consent to the children being abroad for a particular purpose for a particular time period, but not beyond, in my view does not operate so as to effect a change in the habitual residence of the children.
Re: Application of Mozes v. Mozes (2001), 239 F.3d 1067 (9th C.A.), a decision of the United States Court of Appeals for the Ninth Circuit, dealt with a time-limited 15-month stay for education purposes. The court stated, at p. 1083:
The academic year abroad has become a familiar phenomenon in which thousands of families across the globe participate every year. . . . Children who spend time studying abroad in this manner are obviously expected to form close cultural and personal ties to the countries they visit â€” thatâ€™s the whole point of sending them there for a year rather than simply for a brief tourist visit. Yet the ordinary expectation â€” shared by both parents and children â€” is that, upon completion of the year, the students will resume residence in their home countries. If this were not the expectation, one would find few parents willing to let their children have these valuable experiences.â€
*source: Ontario reports