Family

OCA provides roadmap to new test in Hague Convention cases

By Judy van Rhijn, AdvocateDaily.com Contributor

A recent Ontario Court of Appeal decision provides guidance for counsel dealing with cases of wrongful removal or retention of children under the Hague Convention, says Toronto family lawyer Michael Stangarone, who argued one of the first cases interpreting the test.

“It’s a well-written decision that helps explain how to determine habitual residence using the hybrid approach set out by the Supreme Court of Canada (SCC) in 2018,” says Stangarone, a partner with MacDonald & Partners LLP.”

“The SCC found that there’s no one factor that determines habitual residence — the shared parental intention of the parties is still part of the analysis, but it’s not the focus. It’s a hybrid approach that considers all of the factors in determining where the child was habitually resident immediately prior to the wrongful removal or retention,” he tells AdvocateDaily.com.

Stangarone says the law has been trending towards this hybrid approach in other jurisdictions outside of Canada.

“It’s now being taken up by Canadian courts,” he says.

In the Court of Appeal matter, the parents, who raised their four children in Germany, moved their family to Ontario. Following the move, the couple separated, and the father wanted to return to Germany with the children while the mother wanted to remain in Ontario. The father commenced an application under the Hague Convention seeking the children’s return to Germany, but the application judge concluded that the children were habitually resident in Ontario.

In dismissing the appeal, the panel endorsed the two-step approach to habitual residence that the application judge took — first determining when the alleged wrongful removal or retention took place, and then determining in which state the children were habitually resident immediately prior to that removal or retention.

“The determination was fact-based,” says Stangarone, who was not involved in the matter and comments generally. “It’s not encumbered with presumptions or formulas. You have to look at what was the focal point of the child’s life — the family and social environment — immediately before the removal or retention, not post-abduction. We’re talking about the child’s links to the country, the circumstances of the move and then the child’s links to the next country.”

Stangarone clarifies that Hague Convention abduction cases are not about custody and access.

“They’re about the interests of children being served by sending them back to their country of habitual residence so that custody and access issues can be properly determined by the court there, based on a full exposition of the evidence,” he says.

The Court of Appeal also turned its attention to the “settled in” exception, which is limited and only comes into play if someone has not commenced their Hague Convention application within one year of the wrongful removal or retention, Stangarone explains.

“If someone waits 18 months and then starts the application, they are going to be faced with an Article 12 defence. It opens the door to consider post-abduction or post-removal/retention factors to demonstrate the child is now settled into their new environment. There is no longer a mandatory return, so at that point, you have to consider the connection to the country at the time of the hearing,” he says.

In this case, the proceedings were commenced within a year of the date the retention was found to have taken place, emphasizing the importance of that finding, Stangarone says, noting the appeal court dismissed the father’s argument that the original decision took into account post-retention factors.

In day-to-day practice, Stangarone says the new approach has not changed the preparation required in a Hague Convention case.

“Frankly, I don’t see a dramatic difference in how we’re determining habitual residence. There is certain evidence that counsel has to be cognizant of marshalling about the child’s nationality, identification cards, health cards, and medical appointments, and where their school is,” he says. “You have to lead the evidence showing the focal point of the child’s life prior to the removal, so in that sense, we were doing that before the SCC decision. Now it’s evidence of the focal point rather than the parental intention. The differences occur when we’re dealing with time-limited consensual stays.”

However, Stangarone says that intention is still a factor — it’s just not the only one.

“It’s a nuanced approach that’s unencumbered by presumptions and rigid rules,” he says. “Marshall all the evidence and then the judge will decide.”

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