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. Our tier 1 Vancouver Hague Convention Child Abduction Lawyers recognize that time is of the essence and that every second counts to getting you the result you want.
Precautions & Preventions Against Parental Child Abduction
MacLean Law recently obtained a key return of children from Texas in a bitter dispute involving two young children, Texas State Court, The US Federal Court the BC Supreme Court, and the BC Court of Appeal. Our case is now setting precedents in the textbooks and Court system to help guide parents and their lawyers.
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On April 20, 2018, the Supreme Court of Canada released its decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (“Balev“) in which adopted a fresh approach for Courts to utilize in determining the “habitual residence” of children under the Hague Convention.
While this appeal itself was rendered moot by the fact that the German courts decided the issue of the custody of the children and authorized their return to Canada, the Supreme Court noted the importance of the issues raised on the appeal, and so heard the appeal to clarify the law surrounding the determination of the habitual residence of a child. Given that the appeal was moot, the majority refrained from making any actual determination on the appeal (it neither granted nor dismissed the appeal) and simply expressed its opinion on the appropriate test to be applied under the Hague Convention.
Our Vancouver Hague Convention Lawyers are part of our 11 time wins as 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
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 Child Abduction Lawyers Explain New Case (604) 602-9000
Our Vancouver Hague Convention Child Abduction Lawyers explain that an Ontario Court of Appeal decision on “habitual residence” by the Ontario Court of Appeal in Balev v Baggott 2016 ONCA 680 was overturned by the Supreme Court of Canada.
The background facts were that, 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 which was in turn appealed to the Supreme Court of Canada.
The Supreme Court of Canada case, Office of the Children’s Lawyer v. Balev, 2018 SCC 16, clarified the concept of “habitual residence” under the Hague Convention on the Civil Aspects of International Child Abduction. The court adopted a “hybrid approach” to determine a child’s habitual residence, focusing on the child’s overall situation and the focal point of their life rather than solely on parental intentions.
Key points about the Balev decision:
- Hybrid Approach:
The court emphasized that determining habitual residence requires a holistic assessment of the child’s circumstances, considering factors like the duration, regularity, conditions, and reasons for the child’s stay in a particular place, as well as the child’s nationality and parental intentions.
- No Single Factor Dominates:
No single factor should be given more weight than others; the totality of circumstances should be considered.
- Parental Intentions:
Parental intentions are relevant, especially for young children, but should not be overemphasized.
- Fact-Specific and Unencumbered:
The hybrid approach is fact-bound, practical, and avoids rigid rules or presumptions.
- Deterring Abductions:
The decision aims to deter international child abduction by promoting speedy resolutions and protecting children from the harmful effects of wrongful conduct.
- Expedited Proceedings:
A recent BC Court of Appeal case also said time limited orders from foreign courts on residence can indeed change a child’s habitual residence.
The Supreme Court encouraged courts to expedite Hague Convention proceedings, recognizing the importance of timely resolutions in these cases.
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. We are here to help prevent parental child abduction.
