SCC ruling on child abduction of global interest

By Staff

For the first time in more than two decades, the Supreme Court of Canada (SCC) recently heard an appeal on the Hague Convention on the Civil Aspects of International Child Abduction, St. Catharines family lawyer Sharon Silbert writes in The Lawyer’s Daily.

The case involved children who are Canadian citizens born in Germany and living in that country at the time of their parents’ separation, says Silbert, principal of Sharon B. Silbert Professional Corporation.

“The parents agreed that the children would travel to Canada with their mother and attend school in Ontario for the 2013-14 academic year, while the father continued to live and work in Germany, but that the children would return to Germany during the summer of 2014,” writes Silbert, who was not involved in the case and comments generally.

At the end of the school year, the father learned that the mother did not intend to return to Germany with the children, and he filed a Hague application under the convention alleging that the children had been wrongfully retained in Canada.”

The mother asserted that keeping the children in Canada after the school year didn’t constitute a “wrongful retention” of the Hague Convention, partly because the children’s habitual residence was Ontario, explains Silbert, who adds that the Office of the Children’s Lawyer (OCL), which was appointed to represent the children’s interests, supported that view.

“However, the application judge found that the parties’ settled intention was for the children to reside in Canada temporarily and not on a permanent basis,” she says. “She ruled that the children were habitually resident in Germany, and had been wrongfully retained in Canada when the father’s consent expired following the end of the school year.”

The Ontario Divisional Court ruled in favour of the mother, saying that the children’s habitual residence had changed from Germany to Ontario during the temporary travel period, but the Ontario Court of Appeal reversed that decision and ordered that the children be returned to Germany even though, by this time, they had been living in Ontario for more than three years, Silbert writes.

“The question of whether the children had been wrongfully retained in Canada was rendered moot before the matter was heard by the Supreme Court of Canada,” she writes. “Following the decision of the Ontario Court of Appeal, the children had returned to Germany as ordered. However, the German court awarded their mother sole custody and they have since returned to Canada.”

Although the children no longer require judicial relief, the appeal remains significant in that the SCC has been asked to provide guidance on the interpretation of the term “habitual residence,” Silbert says.

“In particular, the high court will need to consider whether a child’s habitual residence for the purposes of the convention can change during a period when the child is in another jurisdiction with a parent’s time-limited consent,” she writes. “It has also been asked to opine on the extent to which children’s best interests should be considered as part of the analysis of their habitual residence.”

In the decision now under appeal, the appeal court ruled that a judge’s role in deciding on a Hague application is neither to determine custody nor the best interests of the children, but rather whether a child has been illegally removed from the jurisdiction of their habitual residence, Silbert says.

“If the question is answered in the affirmative, the child must be returned unless one of the exceptions contemplated by the convention applies,” she writes.

In its submissions to the high court, the OCL argued that the appeal court’s decision wrongly prioritized the goals of deterring child abduction and protecting children in general over the rights and interests of the particular children involved in the case, Silbert writes.

The OCL asked the SCC to endorse a more child-centric approach in applying the Hague Convention, arguing that the extent to which a child has integrated into a new environment should carry at least the same weight as parental intentions, Silbert writes.

“The OCL also noted that in circumstances where a child has spent a significant amount of time away from a country in which they formerly resided, a forced return may be harmful to the child regardless of whether the time away resulted from a time-limited parental consent,” she says.

The Supreme Court has reserved judgment in the appeal, but when its decision is released, it will be of interest to jurists in more than 80 states where the Hague Convention is applied, Silbert writes.