Even if you reside in Ontario and your child has lived most of his life in Ontario, an Ontario court may not have the jurisdiction to grant you a custody order with respect to your child if your child does not reside in Ontario at the time a court action is commenced. Conversely, an Ontario court may have the jurisdiction to grant a custody and access order with respect to your child even if you are not agreeable to such a right.
This is the case because usually, pursuant to section 22(1) of the Children’s Law Reform Act, R. S. O. 1990, c. C. 12, an Ontario court will not exercise its jurisdiction to make an order for custody or access where the child is not habitually resident in Ontario at the commencement of the application for the order.
Balev v. Baggott, 2016 ONSC 55, 2016 CarswellOnt 7 is an appeal by a father of an order that two children were being wrongfully retained by their mother in Ontario, Canada and an order that the children be returned to Germany for the parents’ custody rights to be determined.
The mother and the father were married in Ontario on November 4, 2000 before they moved to Germany in 2001 where their two children were born in September 2002 and December 2005. The parties and their children are Canadian citizens. The parties separated on April 19, 2013 and agreed that the mother would take the children to Canada to attend school on a temporary basis until August 15, 2014. On March 17, 2014, the father attempted to revoke his consent to the children’s stay in Ontario and emailed the mother warning her that she could be charged with abducting the children if they were not returned to Germany by March 31, 2014. The father began a Hague Convention application in Germany pursuant to the Convention on the Civil Aspects of International Child Abduction that was heard in St. Catharines, Ontario. The application judge released Her decision on August 27, 2015 and concluded that the habitual residence of the children was Germany.
The Appeal Court
The appeal court noted that the Ontario Court of Appeal defined the phrase "habitually resident" in the context of a Hague Convention in KorutowskaWoof v. Woof (2004), 242 D.L.R. (4 at paragraph 8 with the following principles:
...the question of habitual residence is a question of fact to be decided on all of the circumstances; the habitual residence is the place where the person resides for an appreciable period of time with a "settled intention"; a "settled intention" or "purpose" is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.; a child’s habitual residence is tied to that of the child’s custodian(s).
The appeal court declared that he agreed with the application judge that the father could not revoke his consent as he attempted to do on March 17, 2014, which meant that August 15, 2014 was the effective date for determining the habitual residence of the two children.
The appeal court held that if the children had been habitually resident in Germany immediately prior to August 15, 2014, the application judge could conclude that the mother had breached the father’s right to joint custody of the children under German law. However, if the children were habitually residence in Ontario immediately prior to August 15, 2014, it had not yet been determined if the father had any such right under the laws of Ontario.
This led to the question of whether the children’s habitual residence had changed from Germany to Ontario during the period that the children were in Ontario with the father’s consent.
In holding that the children’s habitual residence had changed to Ontario, the appeal court noted as follows in paragraph 40, among other things:
...I am satisfied that the appellant had the intention to remain in St. Catharines temporarily at the beginning of the consensual period. This intention was a "settled" one and was for two particular purposes to obtain employment and to allow the children to attend school in Canada. Obviously the appellant's intention to remain in St. Catharines became permanent at a later point during the consensual period, because the appellant did not return to Germany with children after August 15, 2014...
The Balev v. Baggott decision reiterates that a person’s habitual residence is the place where she or he resides for an appreciable period of time with a settled intention to stay for a particular purpose either permanently or temporarily.
Erika R. Jacobs