Have you been served a Hague Convention application? Or are you wanting your children to be returned to their country? Juliet can help.
Office of the Children’s Lawyer v. Balev, 2018 SCC 16
Hague applications are complicated and the courts are to apply a hybrid approach adopted in Office of the Children’s Lawyer v. Balev, 2018 SCC 16.
In this case, the family resided in Germany. However, the children were struggling in school. The father consented for the mother to take the children to Canada for a year and a half.
The father believed the mother would not return with the children, so he revoked his consent and wanted the children to return to Germany.
The father commenced a Hague application to have the children returned. The application judge ordered that the children be returned. The Divisional Court on appeal reversed the decision. The Court of Appeal reinstated the decision. The matter was appealed to the Supreme Court of Canada.
In the interim, the children were returned to Germany where the mother obtained an order from a court in Germany for sole custody of the children. The mother and children then returned to Canada.
Prior to this case, courts applied the parental intention approach to determine the habitual residence of the children.
Rather than using the parental intention approach, the Supreme Court of Canada adopted the hybrid approach to determine where the children’s habitual residence was. This was an attempt to come in line with international law where other jurisdictions were using the hybrid approach. The hybrid approach combines the (a) settled parental intention approach and (b) the child-centred approach in assessing “habitual residence”.
The law in Hague Applications is quite complicated. If you are wanting to commence a Hague Application or need to respond to a Hague Application, Juliet can help you navigate through the law.