Habitual residence
Balev v. Baggott,
Court of Appeal for Ontario, Canada
13 September 2016, ONCA 680
The 2 children were wrongfully retained at ages 11 and 8. The children are nationals of Canada. The parents were married. The father and the mother are also nationals of Canada.
The father transferred physical custody in a notarised letter to the mother for the period April 2013 to August 2014, to allow the children to enroll in a Canadian school. The children lived in Germany until April 2013. The mother did not want to return the children after that period. The father filed a return application with the Superior Court of Justice (Family Court Branch) in June 2014.
The main issues in this case are: habitual residence, rights of custody, objections of the child to return.
Habitural residence
A parent cannot unilaterally change the habitual residence of a child during a time-limited period of consensual stay in another State agreed to by the other parent. Contemplation of an extension of such a period of consensual stay does not defeat its time-limited nature.
Evidence of the child settling in his new environment is irrelevant if the application for return is brought within one year of the removal or retention.
Rights of custody
Where rights of custody have been transferred by one parent to another for the sole purpose of enrolling children in school in a given State, the parent who transferred those rights exercises them when the taking parent refuses to return the child, or would have exercised them but for the removal or retention.
Objections of the child to a return
A child’s objection to return that is unsubstantial or merely expresses a preference for one place over another is insufficient grounds for refusing to order return under Art. 13(2) of the 1980 Hague Child Abduction Convention.
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