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In a unanimous decision last week, Balev v Baggott, the Ontario Court of Appeal interpreted legislation on international child abduction and ordered a mother to return her two children to Germany, where the father currently resides.

The Court based its decision on an interpretation of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), which is an international treaty that sets out obligations on countries to ensure the quick return of children who have been abducted by one parent and taken to another country. Both Canada and Germany are signatories to this treaty, which has been incorporated into Ontario law under the Children’s Law Reform Act.

In Balev, the parents were Canadian citizens who moved to Germany in 2001 and obtained permanent resident status there. Their children were both born in Germany in 2002 and 2005 respectively, and had attended school there for the majority of their lives. However, like their parents, the children were Canadian citizens.

In April 2013, the parents agreed that the mother would temporarily take the children to Canada for a one-year “educational exchange” opportunity. The parties had joint custody of the children, so the father signed a travel consent letter for the children to visit Canada until August 15, 2014. When the time came for the mother to return to Germany with the children, she refused.

The Court ultimately ordered the return of the children, noting that the mother had wrongfully detained the children since the expiration of the father’s travel authorization on August 15, 2014.

At the outset of its reasons, the Court emphasized that in a Hague Convention application, a court is not determining custody or considering best interests of the children; it is simply deciding whether a child has been wrongfully abducted or retained.

Under Article 3 of the Hague Convention, the removal or retention of a child is wrongful if:

  • It is in breach of the other parent’s custodial rights in the law of the state that the child was habitually resident immediately before the removal or retention; and
  • At the time of the removal or retention, the custodial rights were actually exercised by that parent, or would have been but for the retention or removal.

The key finding the Court of Appeal therefore had to determine was whether the habitual residence of the children had changed from Germany to Ontario during the time-limited consent period of their stay. If it had changed, the Hague Convention would not apply, and there would be no basis for ordering the children to return to Germany.

The Court of Appeal disagreed with the Divisional Court’s finding that the parents’ joint agreement to allow the children to study in Ontario for the year could change a child’s habitual residence, noting that time-limited consensual stays for educational purposes are now common.

It further held that the parents continued to have joint custody of the children during the period the mother was in Ontario. As a consequence, the mother could not unilaterally change the children’s habitual residence during their stay. The Court found that to hold otherwise would render time-limited consents meaningless and would allow one parent to lay the foundation for child abduction by obtaining a defined, temporary travel consent, which would undermine the purpose and proper operation of the Hague Convention.

That said, the Court did not entirely foreclose the possibility that a time-limited consensual stay could extend to a point that it is “time-limited in name only”, and thereby change the child’s habitual residence, but these circumstances would have to be exceptional.  

If you have more questions about time-limited travel consents, contact our Family Law Group.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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