Supreme Court of Canada changes guidelines for international child custody cases

Canada’s top court is issuing new guidelines on how international custody disputes should be judged, saying “all relevant circumstances” should be taken into account when deciding what country a child should live in.

The direction from the Supreme Court of Canada comes in a ruling on a custody battle involving parents who clashed on whether their children should live in Canada or Germany. Much of the case hinged on how much say children should have in such matters and what constitutes their “habitual residence.”

“The issues raised are important, and the law on how cases such as this fall to be decided requires clarification,” the court said in a written decision issued Friday.

To date, judgements in Canada have been based mainly on what a parent’s circumstances and “intentions” were when taking a child across borders in breach of a custody agreement, the top court said.

But the legal system should be looking at all factors, including a child’s links to a particular country, the circumstances of their movement between countries, and the duration, conditions, reasons for and frequency of their stays in the country, the court ruled.

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“The hybrid approach best fulfills the goals of prompt return (by) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and protecting the child from the harmful effects of wrongful removal or retention,” the court said.

Under the Hague Convention on the Civil Aspects of International Child Abduction — a treaty that sets out custody laws for the nearly 100 signatory countries —  children must be quickly returned to the country of their “habitual residence” if they are taken away from it by a guardian who does not have permission to do so.

The convention does not, however, define what constitutes a “habitual residence,” leaving it up to courts to decide in each case.

The case before the top court involved a Canadian couple who moved to Germany in 2001 and had two children there. The father was granted custody after the couple separated in 2011, but, when the kids started struggling in school, he agreed to let the mother take them to Canada for 16 months to see if they improved, the court’s decision said. 

The mother did not bring the kids back to Germany when the 16 months were up, and the father went to court to invoke the Hague convention and get them back, arguing that Germany was his kids’ country of habitual residence, the ruling said.

The case then took several legal turns.

An Ontario Superior Court in St. Catharines ruled the kids should be returned to Germany, based on their parents’ intentions at the time they were taken to Canada. 

The mother appealed that ruling and a second judge decided the kids should stay in Canada, as they had integrated into the community. Another appeal, brought by the father, agreed with the original decision, that the kids should be returned to Europe.

The Office of the Children’s Lawyer — a provincial agency in Ontario that represents children in custody and parental access cases — then turned to the Supreme Court, saying the children had ended up being “harmed” by the operation of an international convention meant to protect them.

In 2016, before the Supreme Court had a chance to hear the case, the children moved back to Germany, where a judge granted their mother sole custody. They then returned to Canada with her in 2017, the Supreme Court said.  

The Supreme Court acknowledged in its decision that the family’s case is now “moot,” and that the children’s fate is not at issue.

It nonetheless dismissed the appeal, finding the children were habitually resident in Germany when their father had granted them permission to go to Canada.

Peter Goffin, The Canadian Press