CANADA - ONTARIO
Ontario Superior Court of Justice
CANADA - ONTARIO
21 May 2020
Habitual Residence - Art. 3
Appeal dismissed, return refused
Office of the Children’s Lawyer v. Balev, 2018 SCC 16,  1 S.C.R. 398
The parties lived in Canada with their four children aged 11, 10, 8, and 2. The father was a citizen of Australia, the mother a citizen of Canada. The children were all born in Canada, with the exception of the eldest who was born in England.
For the first several years of the parties’ relationship, they moved back and forth between Australia and Ontario. In July 2010, the parties settled in Australia, although they continued to travel back and forth between Canada and Australia for a variety of different reasons.
In 2014 the family moved to Canada and the children started attending school in Toronto.
The father alleged that in early 2017, the parties signed an agreement that the family would return to Australia once the mother completed her training and one year of work experience.
In the summer of 2019, the father wanted to start preparing for the family’s return to Australia. In August 2019 the mother left the family home with the children.
The father filed an application under the 1980 Hague Convention in September 2019 alleging that the mother wrongfully retained the children in Ontario as the parents always intended to move back to Australia.
Application dismissed. The children were habitually resident in Canada.
The court accepted that the father revoked his consent for the children to remain in Ontario in August 2020, when the mother removed the children from the parties’ residence.
However, the court found that the focal point of the children’s lives had been in Ontario for the last six years. Therefore as the children’s habitual residence was in Ontario immediately before the retention, the retention was not wrongful.
The court set out clearly the ‘hybrid approach’ to deciding habitual residence and the factors considered in its decision.