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The mother and father were married in Ontario, Canada in 2000 and moved to Germany in 2001. Their daughter and son were born there in 2002 and 2005. The children attended school in Germany, apart from two short visits to Canada.

Because the children struggled in the German school system, the parents agreed that the mother would take them to Canada for the 2013-2014 school year. The father gave his consent for a 16-month stay (from April 2013 to August 2014) in a letter in which he agreed to temporarily transfer physical custody of the children to the mother during this period. In March 2014, the father suspected that the mother would not return the children to Germany at the end of the school year. He therefore purported to revoke his consent and resumed custody proceedings in Germany. In April 2014, he also commenced a return application under the 1980 Hague Child Abduction Convention through the German Central Authority. In June 2014, he commenced an application for the return of the children before the Ontario Superior Court of Justice, which the mother opposed. Both children objected to their return to Germany.

The application judge found the children to be habitually resident in Germany, that they had been wrongfully retained and that their objection did not meet the threshold of Article 13(2) – she accordingly ordered their return. Her decision was overturned by the Divisional Court, which found that the children’s habitual residence had changed from Germany to Ontario during their 16-month stay in Canada. The Divisional Court’s decision was thereafter overturned by the Ontario Court of Appeal, which found that the children had retained their German habitual residence and restored the return order of the application judge.

The children were returned to Germany on 15 October 2016 (a day after a notice of application for leave to appeal had been filed with the Supreme Court) where the mother was awarded sole custody. The children returned to Canada in early April 2017. Although the appeal was moot, the Supreme Court granted the application for leave to appeal on 27 April 2017 because the issues raised were deemed to be important and the law in need of clarification.

The majority adopted a “hybrid approach” to determining habitual residence under Article 3 of the Convention, and a non-technical approach to considering a child’s objection to removal under Article 13(2) of the Convention. Since the appeal was moot, the majority did not determine the habitual residence of the children or rule on whether return should be ordered in the case at hand.

Interpretation of the Convention

The majority referred to the rules of interpretation of the Vienna Convention on the Law of Treaties (specifically Articles 31(1) and 31(3)(b)) and elaborated on the principle of harmonisation. The purpose of the 1980 Hague Child Abduction Convention is to establish procedures common to all Contracting States to ensure the prompt return of children. To support this harmonisation objective, courts applying the Convention must give serious consideration to how it is interpreted and applied by courts in other Contracting States. By adopting the interpretation that has gained the most support internationally – unless there are strong reasons not to do so – courts will best ensure uniformity of state practice. 

The majority also held that for the purposes of assessing the interpretative issues raised by the parties, there was no conflict between the 1980 Hague Child Abduction Convention and the Convention on the Rights of the Child. Both instruments seek to protect the best interests of children, protect the child’s identity and family relations, and prevent the illicit transfer and retention of children. Furthermore, they both accept the principle that a child of sufficient maturity should have a say in where the child lives.

The court held that both the 1980 Convention and the United Nations Convention on the Rights of the Child of 1989 seek “to protect the best interests of children”, “to protect the child’s identity and family relations”, and “to prevent the illicit transfer and retention of children”, and that both conventions “accept the principle that a child of sufficient maturity should have a say in where the child lives”.

Habitual Residence - Art. 3

The parties and the interveners in the case offered three possible approaches to determining a child’s habitual residence:

• The “child-centred approach”, where a child’s habitual residence is determined based on the child’s acclimatisation in a given country. This approach emphasises the situation and perspective of the child and renders the intentions of the parents largely irrelevant;
• The “parental intention approach”, where a child’s habitual residence is determined based on the intention of the parents who have the right to determine where the child lives;
• The “hybrid approach”, where a child’s habitual residence is determined based on all relevant considerations arising from the facts of the case at hand, and where no single consideration is determinative.

The majority adopted the hybrid approach, which they described as a fact-bound enquiry with no legal test and a list of relevant factors that is not closed. These factors notably include the duration, regularity, conditions and reasons for the child’s stay in the territory of a Contracting State, and the child’s nationality. They explained that in determining habitual residence, judges must look at the entirety of the child’s situation and consider all relevant links and circumstances – the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B.

The majority adopted a hybrid approach for two reasons. Firstly, the principle of harmonisation supported it; they found that there was a trend towards the hybrid approach in foreign case law dealing with the Convention and that there was no reason not to follow that trend. Secondly, it best conformed to the text, structure, and purpose of the Convention.

Objections of the Child to a Return - Art. 13(2)

The majority made it clear that the exceptions to return set out in the Convention should not be read so broadly as to erode the general rule of prompt return. They do not confer a general discretion on the judge to refuse to return the child; this discretion only exists if the elements of the exceptions have been established.

In the case of Article 13(2), the elements to be established are: firstly, that the child has reached an appropriate age and degree of maturity at which his or her views can be taken into account; and, secondly, that the child objects to being returned. It is for the application judge to determine, as a matter of fact, and in a non-technical way, whether those elements are established. Whether a child is of sufficient age and maturity can generally be dealt with as a matter of inference from the child’s demeanour, testimony and circumstances. The child’s objection can similarly be assessed in a straightforward fashion, without formal conditions or requirements. Where it is appropriate to call expert evidence or have the child professionally examined, this should not be allowed to delay the proceedings.

If both elements of the exception are established, the application judge has the discretion (not the obligation) to refuse to order return. In exercising this discretion the application judge should look at the nature and strength of the objection, whether the objection is the result of the influence of the abducting parent, and whether it is at odds with other considerations which are relevant to the welfare of the child or general considerations of the Convention.

Procedural Matters

The majority found that the delay that accrued in this case was unacceptably long. They noted that Articles 2 and 11 impose an obligation to act expeditiously in proceedings for the return of children, and that the responsibility for performing Canada’s Article 11 obligation falls to judges and court administrators.

The majority also noted that, as a result of this case, the Supreme Court of Canada had taken steps to ensure that Convention cases were flagged internally and expedited by the registry. They encouraged other courts to do the same and indicated that Convention proceedings should be judge-led, not party-driven, and that judges should not hesitate to use their authority to expedite proceedings in the interests of the children involved.

Author: Emmanuelle Jacques, Department of Justice of Canada