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The father, a German citizen, and the mother, a Canadian citizen, married in 2001 and had four children (born in 2003, 2005, 2006 and 2009). They lived almost exclusively in Germany from their marriage until August 3, 2017, when they moved with their children to Ontario, Canada. The father entered Canada as a visitor and never received a work permit, while the children obtained extended visas, which were to expire on September 30, 2018. The couple bought a house and brought most of their belongings from Germany to Ontario. During their time in Canada, the children attended school, made friends, and developed a close relationship with their maternal extended family. 

In March 2018, the couple separated. The father made plans to return to Germany. The mother wanted to remain in Ontario with the children. In July 2018, the mother issued a divorce application and asked for the custody of the children in Ontario.

In August 2018, the father commenced an application for the return of the children to Germany under the Convention. The Ontario Superior Court of Justice ordered the involvement of the Office of the Children’s Lawyer (OCL). The OCL counsel summarized the children’s views and preferences to the Court, stating that the three oldest children wished to remain in Ontario but that the youngest did not express concrete views. On January 4, 2019, the Ontario Superior Court of Justice dismissed the application on the basis that the children were habitually resident in Ontario. The father appealed this decision. 

Appeal dismissed and application dismissed; the children were habitually resident in Ontario.

Habitual Residence - Art. 3

The court recalled that habitual residence is a question of fact or mixed fact and law and that an application judge’s determination is subject to deference. 

The court endorsed a two-step approach to determining habitual residence: 1) When did the alleged wrongful removal or retention take place? 2) Immediately prior to the removal or retention, in which state were the children habitually resident?

It concluded that, since the father agreed that the children could stay in Canada until the start of the 2018-2019 school year, it was reasonable for the application judge to conclude that the alleged wrongful retention took place immediately prior to September 2018.

The court found that the application judge had correctly applied the hybrid approach put forward by the Supreme Court of Canada in Office of the Children’s Lawyer v. Balev and that she was entitled to find the children habitually resident in Ontario. 

It noted that the application judge appropriately considered the children’s links to and circumstances in Ontario immediately prior to September 2018 and not subsequently to it, therefore not confusing the determination of habitual residence with the “settled in” exception. 

Moreover, the court stated that the children’s views and preferences are a relevant factor in the determination of habitual residence when they are indicative of the children’s link to and circumstances in a particular country. However, the court noted that the children’s views and preferences are not relevant at the habitual residence stage if they are motivated by factors that pertain to the Article 13(2) exception or the assessment of the best interests of the child. In the current case, the three older children gave reasons for wishing to stay in Ontario (their ties to their maternal extended family and the friends they had made) that were relevant to their links to Ontario. 

Settlement of the Child - Art. 12(2)

In the current case, the children were found to be habitually resident in Ontario so the court did not ultimately consider the exception. The court nevertheless provided general comments on its interpretation and confirmed that the application judge had not erred by conflating the circumstances of the children prior to the alleged date of wrongful retention with the settling-in of the children. 

The court also underlined that, under this exception, the assessment of the child’s connection to a country is done at the time of the hearing, therefore taking into account the child’s connections developed after the date of alleged wrongful removal or retention. 

Objections of the Child to a Return - Art. 13(2)

In the current case, the children were found to be habitually resident in Ontario so the court did not ultimately consider the exception. The court nevertheless provided general comments on its interpretation and confirmed that the application had not erred by treating the children’s views and preferences as objections under article 13(2). 

The court underlined that, in certain circumstances, children’s views and preferences may be more relevant to the article 13(2) analysis than to the determination of habitual residence, for example if they concern only the children’s perceived interests to remain in a given country for greater economic or educational opportunities.  

Author: Emmanuelle Jacques and Peter Cole