MacLean Law’s Hague Child Abduction and Habitual Residence Lawyers want the public to understand that The Hague Convention on the Civil Aspects of International Child Abduction [Hague Convention] is a multilateral treaty, entered into force in 1983, that numerous countries, including Canada and the United States, have joined. In today’s blog energetic Allard Law School summer student Arissa Javer explains how this treaty works and why habitual residence is critical to where the case of child custody and parenting rights is decided. Arissa works with our group of Hague Child Abduction and Habitual Residence Lawyers and with Lorne MacLean, KC and Fraser MacLean and other team members on complex and international family law cases including Hague Child Abduction cases.
Vancouver Hague Child Abduction and Habitual Residence Lawyers
The Hague Convention was established to respond to the detrimental effects of international abduction by a parent. This form of abduction occurs when a parent, guardian, or other
person with lawful care of a child wrongfully removes a child from their home country. This treaty provides a method to promptly return that child to their country of habitual residence.
Purpose, Aims & Proceedings of the Hague Convention Tel: 604 602 9000
In addition to helping parents of internationally abducted children get their children returned to them, a primary aim of the Hague Convention is to ensure that parenting and custody matters are decided by the proper court in the country of the child’s habitual residence. In other words, the Hague Convention was created to ensure that parents do not traverse international borders to have their family matters be decided by a different — potentially more favourable — court.
How Does The Hague Child Abduction Treaty Work? Tel: 604 602 9000
To make an application under the Hague Convention, both countries — the one the child was taken from and the one the child has been brought to — must have adopted the Hague Convention and thus be ‘Contracting States’. Therefore, proceedings under the Hague Convention establish a system of cooperation and support between the two countries.
For the successful return of a child under the Hague Convention, three conditions must be met:
1) The child was removed from their habitual residence
2) The child is under the age of 16, and
3) The removal of the child was considered wrongful
BC Hague Child Abduction and Habitual Residence Lawyers Tel: 604 602 9000
As per Article 3 of the Hague Convention, the removal of a child is considered “wrongful” whenever it has
(a) breached the rights of custody attributed to a person under the law of the country in which the child habitually resided in immediately before their removal or retention; and (b) at the time of removal or retention, those rights of custody were actually exercised, or would have been exercised had the removal
or retention not occurred.
It is notable that Hague proceedings do not impact any of the parenting rights ascribed to the parents of the abducted child. Rather, when a parent makes an application under the Hague Convention, they are merely requesting that the other country return their child to their country of habitual residence so that the courts in that country can make decisions on their family matters.
The Supreme Court Of Canada adopted a new approach to deciding the issue of “habitual residence” as it is not defined.
In Office of the Children’s Lawyer v Balev 2018 SCC 16 the official SCC summary states:
The majority of the Supreme Court held that courts should look at all relevant considerations a child’s habitual residence. This includes the child’s links to, and circumstances in, each country. The circumstances of the parents, including their intentions, may be considered. However, courts have no definitive list of factors that they must take into account; they must look at the child’s complete situation. A court can, however, decline to return a child if an exception listed in the treaty applies. Determining habitual residence quickly allows children to be returned as soon as possible. This protects children, deters abduction by parents, and helps ensure that the proper courts (in the child’s country of habitual residence) can decide custody and access issues more quickly.
This case led to changes in the way the Supreme Court deals with international custody cases. The majority noted that the legal procedures took too long, and said this was unacceptable because the first goal of the Convention is to bring children home quickly. To prevent future delays, the Court is making sure that cases like this one will be identified and sped up. The Court encouraged lower courts to take similar measures.
Exceptions To The Hague Child Abduction Proceedings Tel: 604 602 9000
Even if the above factors are met, the court in the child’s home country may not order the return of the child if certain exceptions apply, as listed in Articles 12 and 13 of the Convention. Examples include:
● Where there is a grave risk that the child’s return to their home country would expose the child to physical or psychological harm or place the child in an insufferable situation
● Where the child objects to being returned to their home country and has attained both an age and a degree of maturity at which the court can take account of the child’s views
● If more than one year has passed since the wrongful removal or retention occurred and the child has now become established in their new environment
The Significance of “Habitual Residence”
As a parent’s rights of custody are determined by the law of the child’s country of habitual residence, an application under the Hague Convention can only succeed if the abducted child habitually resided in the Contracting State from which they were taken. If the court finds that the country from which the child was taken was not their place of habitual residence immediately before the removal or retention, then the Hague Convention does not apply. However, the Hague Convention does not define the term “habitual residence” — Thus, the courts in each Contracting State have discretion to determine the meaning of this term based on the facts of the case before them.
Vancouver Hague Child Abduction and Habitual Residence Lawyers
The BC Court of Appeal case of Gill, decided in April of 2024, dealt with the issue of international
abduction by a parent, and, consequently, analyzed the term “habitual residence”.
Regarding the meaning of “habitual residence,” the trial judge in Gill stated:
[22] The term “habitually resident” is not defined in the Hague Convention. In Balev, the Supreme Court of Canada adopted a “hybrid approach” to determining habitual residence. This approach requires an application judge to determine the “focal point” of the child’s life—that is, the family and social environment in which the child’s life has developed—immediately prior to the removal or retention: Balev at para. 43. The entirety of the relevant circumstances should be considered, and no single factor dominates the analysis: Balev at para. 44. The circumstances of the parents, including their intentions, may be an important consideration, particularly in the case of young children…
The Application of The Hague Convention in the BC Appeal Court Gill Decision
Gill centers on the issue of international abduction by a parent regarding the taking of a child from the United States to Canada. The appellant is an American citizen who has been living in Las Vegas for the past decade, and the respondent is a Canadian citizen who was born and raised in Vancouver. The parties married in 2020 and in 2023, their child, “K” was born in Las Vegas. A month after, the respondent traveled to Vancouver with K and they have resided there ever since. The appellant and respondent soon separated and the appellant then submitted an application under the Hague Convention for K’s return to America.
To determine if the Hague Convention applies, the child’s place of habitual residence must be assessed first. In this case, the chambers judge found that K’s home country was Canada and thus the Hague Convention did not apply. On appeal, however, the appellant argued that the judge made a legal error in her finding of habitual residence.
In assessing habitual residence, the appellant argued that parental intention plays a large role:
[36] The appellant emphasizes that although the Court in Balev rejected a test for habitual residence based on parental intention, this factor remains relevant, “particularly in the case of infants or young children”: Balev at para. 45. The appellant contends that in placing “significant weight” on K’s family environment (per para. 185 of the reasons for judgment), the judge failed to properly consider the parties’ shared parental intentions. The appellant says it cannot be the case that a child’s place of habitual residence is determined solely or primarily by the identity of the primary caregiver. This would, the appellant argues, create a “worrisome precedent”, in that it would contravene the purposes of the Hague Convention.
However, as it is up to each court to define “habitual residence”, the BC Court of Appeal in this case placed more weight on the child’s family environment rather than parental intention:
[37] I am not persuaded that the judge committed the legal error alleged by the appellant. As the appellant acknowledges, the judge cited the correct factors to be assessed in determining the “focal point of the child’s life” immediately prior to the retention: Balev at para. 43. K is an infant, and therefore his environment is “essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of”: Balev at para. 44. The judge did not, as the appellant asserts, determine
habitual residence primarily or solely by the identity of the primary caregiver. While the judge found that the respondent had been K’s primary caregiver since birth, she also recognized
that this was not, on its own, determinative.[38] The judge also did not overlook parental intention; that is, the parties’ shared intention at the time of removal that the respondent’s trip to Vancouver with K would be indefinite but not permanent. The judge acknowledged that in assessing K’s circumstances, the factors to consider included “his nationality, the duration, regularity, conditions and reasons for his stay in Canada and the parties’ circumstances including their intention”: at para. 169 (emphasis added). The judge noted that, as set out in Balev and Ludwig, parental intention is a tool to assess the child’s connections to a given country: at para. 170…
[39] In the circumstances of this case, the judge concluded that in determining the focal point of K’s life prior to November 6, 2023, parental intention should be given “some weight”, and K’s family environment should be given “significant weight”: at para. 185. The judge was not obliged to conclude that parental intention was the dominant consideration. As was made clear in Balev, there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of a child: Balev at para. 46. The role of parental intention in the determination of habitual residence “depends on the circumstances specific to each individual case”: Balev at para.
45…
In the end, the BC Court of Appeal found that the Hague Convention did not apply as K’s place of habitual residence was Canada due to K’s familial connection to that country. Consequently, the appeal was dismissed as the court found that the chambers judge correctly applied the law and did not make any legal errors regarding K’s place of habitual residence.
Contact Our Hague Child Abduction and Habitual Residence Lawyers Today Tel: 604 602 9000
Gill is notable for the clarification it provides regarding the meaning of “habitual residence” as it applies to the Hague Convention. As this term is not explicitly defined in the Hague Convention, it is up to the judges in each Contracting State to analyze this term depending on the facts of the case, as was done in this case.
