Vancouver Child abduction cases are a nightmare for parents. Our Vancouver Hague Convention Lawyers are focused in this fast paced and complex area of family law and are regularly called on to handle cases where allegations have been made of international child abduction. We recognize that time is of the essence and that every second counts to getting you the result you want. Our Vancouver Hague Convention Lawyers are part of Top Choice Awards’ top rated* Vancouver family law firm and we are here to help you at a time of extreme distress. Calling us or meeting with us at any of our 6 offices in BC or Calgary the minute a child goes missing is crucial. Toll free 1-877-602-9900.
Vancouver Hague Convention Lawyers 604-602-9000
Call our top rated* Vancouver family law firm members today to find out your rights and obligations at 604-602-9000.
Our Vancouver Hague Convention Lawyers will be able to guide you through the process in making or defending or defending an application for child abduction. One of the fundamental issues to understand is the where the child or children were “habitually resident”. A complete understanding of what “habitual residence” means is crucial as there have been many cases of the last few years that have discussed it. It is vital that you seek specialist advice from our Vancouver Hague Convention lawyers who can guide you in the right direction.
Vancouver Hague Convention Lawyers Explain New Case
Our Vancouver Hague Convention Lawyers will explain that “habitual residence” was most recently by the Ontario Court of Appeal in Balev v Baggott 2016 ONCA 680.
Just to give you some of the background facts, the parents were Canadian citizens who in 2001, moved to Germany and had been living there. The parties had two children, whilst both born in Germany, neither were German citizens. Prior to 2011, both children lived and attended school in Germany with the exception of two periods during which the children were in school in Ontario for about a year. In 2011, the parties began to have marital difficulties and they subsequently separated for a short period. During the period before the parties reconciled, the father was awarded temporary custody of the children.
In April 2013, the parties agreed that the mother would take the children to attend school in Canada. The father duly signed a travel authorization confirming his agreement to the children travelling to Canada from July 5, 2013 until August 15, 2014. The father also signed a letter which provided for the transfer of custody from him to the mother. In March 2014, the father informed the mother that he wanted the children to be returned and when this was not agreed, the father made a Hague Convention application in Ontario seeking the children to be returned to Germany.
Initially, the court found that while the mother had wrongfully retained the children against the father’s wishes and ordered that the children should be returned to Germany. The mother appealed the decision to the Divisional Court who reversed the decision finding that that the children’s “habitual residence” had changed from Germany to Canada during the consensual temporary travel period and therefore dismissed the father’s application to have the children returned. The father subsequently appealed the decision to the Ontario Court of Appeal.
In granting the father’s appeal, the Court of Appeal gave a clear pronouncement that one parent cannot change a child’s “habitual residence” unilaterally. The Judges had this to say:
[39] There is a long and well-established line of authority to the effect that one parent cannot unilaterally change a child’s habitual residence under the Hague Convention. The application judge correctly described this principle at para. 73: “the 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 parent.” As stated in Maharaj v. Maharajh, 2011 ONSC 525 (Ont. S.C.J.), at para. 18, “unless the mother can establish a shared parental intention to change the child’s residence” at the time of the move to Ontario, the child’s habitual residence remains unchanged.
The Court of Appeal maintained that the Divisional Court had made a mistake in finding that the time limited agreement that the father had given has caused the children to change their “habitual residence”. The Court of Appeal found that the starting presumption is that a child will not lose his or her habitual residence during time-limited period with a parent’s consent. The Court of Appeal outlined a long line of authorities which confirm this position but did comment that time-limited consensual stays for educational purposes for lengthy periods of time were now commonplace and that it may be that the stays are so lengthy that it could change the child’s “habitual residence”. The Court of Appeal set aside the Divisional Court’s decision and ordered the children to be returned back to their home – Germany.
While the Court of Appeal expressed some sympathy for the mother given that the children had by all accounts become settled in Canada, this case highlights that it is crucial that you obtain legal advice from our Vancouver Hague Convention Lawyers. This should be done prior to allowing your children to leave the country for any length of time so that you know exactly what your rights are and what steps can be taken if things, unfortunately, go wrong. Our Vancouver Child Abduction Lawyers can also assist in preparing documents that explicitly outlines what you have agreed to and what you have not agreed to. It will be documents such as these that will show the Judge if things went wrong, exactly what you had agreed to and secure the return of your children.
If you believe that your children have been removed or retained to a different country, or allegations have been made that you have removed or retained your children from another country, please call our Vancouver Hague Convention Lawyers at 604-602-9000 who will be able to guide you in the right direction.
