Office of the Children’s Lawyer Appellant v. John Paul Balev and Catharine-Rose Baggott, 2018 SCC 16

SUPREME COURT OF CANADA Citation: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398 Appeal Heard: November 9, 2017 Judgment Rendered: April 20, 2018 Docket: 37250 Between: Office of the Children’s Lawyer Appellant and John Paul Balev and Catharine-Rose Baggott Respondents - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Defence for Children International- Canada and Barbra Schlifer Commemorative Clinic Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

Reasons for Judgment: (paras. 1 to 91) McLachlin C.J. (Abella, Karakatsanis, Wagner, Gascon and Brown JJ. concurring) Joint Dissenting Reasons: (paras. 92 to 161) Côté and Rowe JJ. (Moldaver J. concurring) Office of the Children’s Lawyer v . Balev, 2018 SCC 16, [2018] 1 S.C.R. 398 Office of the Children’s Lawyer Appellant

v. John Paul Balev and Catharine-Rose Baggott Respondents and Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Defence for Children International-Canada and Barbra Schlifer Commemorative Clinic Interveners Indexed as: Office of the Children’s Lawyer v. Balev 2018 SCC 16 File No.: 37250. 2017: November 9; 2018: April 20.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the court of appeal for ontario Family law — Custody — Wrongful removal or retention of child — Convention on the Civil Aspects of International Child Abduction — Mother of children living in Canada pursuant to a time-limited custody agreement failing to return children to father in Germany following expiry of consent period — Retention of children triggering operation of return mechanism under Hague Convention — Whether children were “habitually resident” in Germany at time of allegedly wrongful retention — How courts should consider child’s objections to return to jurisdiction of habitual residence — Convention on the Civil Aspects of International Child Abduction, Can.

T.S. 1983 No. 35, arts. 3, 13. Legislation —

Interpretation — Treaty implemented in domestic legislation — Convention on the Civil Aspects of International Child Abduction — Habitual residence — Different approaches to determination of “habitually resident” in

Article 3 of Convention developing in international jurisprudence — Canada signatory to this Convention and to Vienna Convention on Law of Treaties — Whether Canadian courts should adopt parental intention approach, child-centred approach or hybrid approach to consideration of habitual residence of child wrongfully removed or retained within meaning of Convention — Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, art. 3. The respondents were married in Ontario and moved to Germany in 2001 where their two children were born in 2002 and 2005.

The children struggled with school in Germany so the father gave his time-limited consent for the children to move to Canada with the mother for the 2013-14 school year. The children attended school in Ontario where they resided with the mother and their grandparents.

Because he suspected that the mother would not return the children to Germany at the end of the school year, the father purported to revoke his consent, resumed custody proceedings in Germany, and brought an action under the Convention on the Civil Aspects of International Child Abduction (“ Hague Convention ”) for an order that the children be returned to Germany. After the consent agreement lapsed, and his applications in Germany were unsuccessful, the father requested that his Hague Convention application be set down for a hearing before the Ontario court.

The application judge requested that the Office of the Children’s Lawyer (“OCL”) be appointed to represent the interests of the children. She found the children to be habitually resident in Germany and ordered the return of the children. The Divisional Court allowed the mother’s appeal. The Court of Appeal allowed the father’s appeal, concluding that the children were habitually resident in Germany at the relevant time, and that there had been a wrongful retention pursuant to

Article 3 of the Hague Convention . The OCL applied for leave to appeal to this Court. An application for a stay pending this appeal was dismissed. The children were ultimately returned to Germany on October 15, 2016, where the mother was awarded sole custody by the German courts. The children returned to Canada on April 5, 2017. Although the appeal is now moot, the issues raised are important, and the law on how cases such as this fall to be decided requires clarification. Held (Moldaver, Côté and Rowe JJ. dissenting): The Court should adopt the hybrid approach to determining habitual residence under

Article 3 of the Hague Convention , and a non-technical approach to considering a child’s objection to removal under Article 13(2). Per McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon and Brown JJ.: The Hague Convention is aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence. A return order is not a custody determination; it is simply an order designed to restore the status quo which existed before the wrongful removal or retention. The heart of the Hague Convention ’s prompt return mechanism is

Article 3, which provides that the removal or retention of a child is wrongful (

a) where it is in breach of custody rights under the law of the state in which the child was “habitually resident” immediately before the removal or retention and (

b) those rights were actually being exercised or would have been exercised but for the wrongful removal or retention. If the requirements of

Article 3 are established,

Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply.

Only one requirement of

Article 3 is challenged in this case — whether the children were habitually resident in Germany at the time of the wrongful retention. And the only relevant exception is the children’s alleged objection to being returned to Germany. The central question here is how an application judge should determine the question of a child’s habitual residence. There are three possible approaches: the parental intention approach, the child-centred approach, and the hybrid approach.

Currently, the parental intention approach dominates Canadian jurisprudence and determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives. Under this approach, time-limited travel to which the parents agree does not change the child’s habitual residence. The hybrid approach, however, holds that instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence must look to all relevant considerations arising from the facts of the case.

The judge considers all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B. Considerations include the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis. The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children.

But, there is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child. Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely to evaluate all of the relevant circumstances. The hybrid approach is fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions. The clear trend of Hague Convention jurisprudence is to rejection of the parental intention approach and to adoption of the multi-factored hybrid approach.

The hybrid approach should be adopted in Canada because (1) the principle of harmonization supports this approach; and (2) it best conforms to the text, structure and purpose of the Hague Convention . A clear purpose of multilateral treaties is to harmonize parties’ domestic laws around agreed-upon rules, practices, and principles. The Hague Convention was intended to establish procedures common to all the contracting states that would ensure the prompt return of children.

To avoid frustrating the harmonizing purpose behind the Hague Convention , domestic courts should give serious consideration to decisions by the courts of other contracting states on its meaning and application. In the end, the best assurance of certainty lies in following the developing international jurisprudence that supports a multi-factored hybrid approach.

Furthermore, the hybrid approach best fulfills the goals of prompt return: (1) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, (2) encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and (3) protecting the child from the harmful effects of wrongful removal or retention. Under the hybrid approach, a child’s habitual residence can change while he or she is staying with one parent under the time-limited consent of the other.

The application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement but also considers all other evidence relevant to the child’s habitual residence. Article 13(2) is an exception to the general rule that a wrongfully removed or retained child must be returned to his or her country of habitual residence, but it should not be read so broadly that it erodes the general rule.

The application judge’s discretion to refuse to return the child to the country of habitual residence arises only if the party opposing return establishes that: (1) the child has reached an appropriate age and degree of maturity at which his or her views can be taken into account, and (2) the child objects to return. Determining sufficient age and maturity in most cases is simply a matter of inference from the child’s demeanor, testimony and circumstances.

The child’s objection should also be assessed in a straightforward fashion — without the imposition of formal conditions or requirements not set out in the text of the Hague Convention . In most cases, the object of Article 13(2) can be achieved by a single process in which the judge decides if the child possesses sufficient age and maturity to make his or her evidence useful, decides if the child objects to return, and, if so, exercises judicial discretion as to whether to return the child.

Finally, the time it took to bring this Hague Convention application to hearing and resolve the ensuing appeals was unacceptably long. The hardship and anxiety that such delays impose on children are exactly what the Hague Convention’s contracting parties sought to prevent by insisting on prompt return and expeditious procedures. It was up to the judicial authorities and court administrators in this case to ensure Canada lived up to its obligation under

Article 11 to “act expeditiously in proceedings for the return of children”. Hague Convention proceedings should be judge-led, not party-driven, to ensure that they are determined expeditiously. Per Moldaver, Côté and Rowe (dissenting): The clear purpose of the Hague Convention is the enforcement of custody rights across international borders, which supports an approach to habitual residence based on parental intention.

In this case, the children were habitually resident in Germany at the time of the alleged wrongful retention in Canada because there was no shared parental intent for Canada to become the children’s habitual residence. Under the provisions of the Hague Convention , courts presented with return applications under

Article 12 must perform a two-step analysis. First, the court must determine whether the child was removed from his or her habitual residence or retained in another country by one parent in breach of the other parent’s custody rights. Second, the court must determine whether an exception to the return order applies. The central dispute in this appeal is at the first step of the analysis: deciding where the children are habitually resident under

Article 3. In most cases, the focus should be on the intentions of the parents as the key element in the analysis, not the strength of the relevant contacts between the child and the competing jurisdictions. In contrast, the hybrid approach dilutes the importance of parental intent as the primary variable in favor of a multi-factor test. The result is an unprincipled and open-ended approach — untethered from the text, structure, and purpose of the Hague Convention — that creates a recipe for litigation.

Where the parents have agreed in writing that a move to a new jurisdiction is meant to be temporary, then that agreement should be given decisive weight. Where shared parental intent is otherwise clear from the evidence before the application judge, it should be determinative of habitual residence, absent exceptional circumstances.

Some courts have recognized a narrow exception for cases where the evidence unequivocally points to the conclusion that the child has acclimatized to the new location but this requires evidence of more than simply settling in to a new location in order for shared parental intent to be disregarded. There are three strong indications that parental intent should be the decisive factor, as dictated by the text and structure of the Hague Convention . First,

Article 12 contains two distinct provisions depending on when a Hague Convention proceeding is initiated. When proceedings have been commenced one year or more after the alleged wrongful removal or retention, a court need not order the child’s return if “it is demonstrated that the child is now settled in its new environment”. Alternatively, when proceedings are commenced within one year, the court is required to “order the return of the child forthwith”. Given this structure, it would not be proper

to consider evidence of settling in when a proceeding is initiated within one year. Second, the two-step analysis required by

Article 12differentiates the concept of habitual residence (at stage one) from evidence regarding the child’s circumstances (at stage two).Article 13(2) provides for an exception to the return order that specifically focuses on whether a child objects to a return. Incorporatingconsiderations of this nature into the preliminary determination of habitual residence would inappropriately collapse the steps of theanalysis. Third,

Article 5 provides that custody rights include “the right to determine the child’s place of residence”, which suggests thatparents, by virtue of their custody rights, must have some influence over where their child is deemed to be habitually resident. The clear purpose of the Hague Convention also supports an approach based on parental intention. If respect for custodyrights is the guiding purpose, it follows that parental intent should be a central focus in assessing habitual residence.

Finally, policyreasons support the parental intention approach because it creates comparatively clear and certain law: absent shared parental intent,neither parent has anything to gain by abducting or retaining a child because the child’s habitual residence will remain the originalcountry, absent exceptional circumstances. Therefore, the parental intent approach best aligns with the Hague Convention’s purposes byprotecting custody rights and deterring abductions that may result from any approach that permits unilateral changes to habitualresidence.

On the other hand, the hybrid approach, by incorporating other factors that could supplant parental intent into thedetermination of habitual residence — which effectively permits one parent to unilaterally change a child’s habitual residence withoutthe other parent’s consent even in the face of an express agreement — blurs the distinction between custody adjudications and HagueConvention applications and undermines the Convention’s goals. Where there is unambiguous evidence of what the parents intended, theparental intent model offers a clear and predictable answer to the question of habitual residence.

Here, the relevant point in time for determining the children’s habitual residence is August 15, 2014 — the date on whichthe father’s period of consent expired. There is no question that the children were habitually resident in Germany prior to their trip toCanada by virtue of an express agreement indicating that the father only consented to a temporary stay in Canada. Article 13(2) shouldnot be lightly invoked so as to systematically undermine custody rights of left-behind parents.

The application judge’s decision that thechildren had not expressed objections with the requisite strength of feeling is entitled to deference. As a result, there is no basis to refusea return order after concluding that Germany was the children’s habitual residence. The appeal should be dismissed. Cases Cited By McLachlin C.J. Considered: O.L. v. P.Q. (2017), C-111/17; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1;Redmond v. Redmond, 724 F.3d 729 (2013); Punter v. Secretary for Justice, [2007] 1 N.Z.L.R. 40; Silverman v. Silverman, 338 F.3d 886(2003); Tsai-Yi Yang v.

Fu-Chiang Tsui, 499 F.3d 259 (2007); referred to: Thomson v. Thomson, (SCC), [1994] 3S.C.R. 551; Re B. (A Minor) (Abduction), [1994] 2 F.L.R. 249; W. (V.) v. S. (D.), (SCC), [1996] 2 S.C.R. 108;Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982; Crown ForestIndustries Ltd. v. Canada, (SCC), [1995] 2 S.C.R. 802; Connaught Laboratories Ltd. v. British Airways (2002), (ON SC), 61 O.R. (3d) 204; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; Stag Line, Limited v. Foscolo,Mango and Co., [1932] A.C. 328; Scruttons Ltd. v.

Midland Silicones Ltd., [1962] A.C. 446; Air France v. Saks, 470 U.S. 392 (1985);L.K. v. Director-General, Department of Community Services, [2009] HCA 9, 237 C.L.R. 582; Febles v. Canada (Citizenship andImmigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Mozes v. Mozes, 239 F.3d1067 (2001); Gitter v. Gitter, 396 F.3d 124 (2005); R. v. Barnet London Borough Council, Ex parte Nilish Shah, [1983] 2 A.C. 309;Chan v. Chow, 2001 BCCA 276, 90 B.C.L.R. (3d) 222; Korutowska-Wooff v. Wooff (2004), (ON CA), 242 D.L.R.(4th) 385; A.E.S. v.

A.M.W., 2013 ABCA 133, 544 A.R. 246; Rifkin v. Peled-Rifkin, 2017 NBCA 3, 89 R.F.L. (7th) 194; S.K. v. J.Z., 2017SKQB 136; Monteiro v. Locke (2014), 354 Nfld. & P.E.I.R. 132; Friedrich v. Friedrich, 983 F.2d 1396 (1993); Feder v. Evans-Feder, 63F.3d 217 (1995); Droit de la famille — 2454, (QC CA), [1996] R.J.Q. 2509; Droit de la famille — 17622, 2017QCCA 529; Jackson v. Graczyk (2006), (ON SC), 45 R.F.L. (6th) 43; Mercredi v. Chaffe, C-497/10, [2010] E.C.R.I-14358; In re R. (Children), [2015] UKSC 35, [2016] A.C. 76; Mugesera v.

Canada (Minister of Citizenship and Immigration), 2005SCC 40, [2005] 2 S.C.R. 100; Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678; In re J. (A Minor)(Abduction: Custody Rights), [1990] 2 A.C. 562; Martinez v. Cahue, 826 F.3d 983 (2016); Karkkainen v. Kovalchuk, 445 F.3d 280(2006); Ruiz v. Tenorio, 392 F.3d 1247 (2004); Barzilay v. Barzilay, 600 F.3d 912 (2010); Murphy v. Sloan, 764 F.3d 1144 (2014); Reyv. Getta, 2013 BCCA 369, 342 B.C.A.C. 30; De Silva v. Pitts, 2008 ONCA 9, 232 O.A.C. 180; Thompson v.

Thompson, 2017 ABCA299; In re M. (Abduction: Rights of Custody), [2007] UKHL 55, [2008] 1 A.C. 1288; England v. England, 234 F.3d 268 (2000); R.M. v.J.S., 2013 ABCA 441, 566 A.R. 230; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; Fothergill v. Monarch Airlines Ltd., [1981] A.C.251; Zingre v. The Queen, (SCC), [1981] 2 S.C.R. 392. By Côté and Rowe JJ. (dissenting) Koch v. Koch, 450 F.3d 703 (2006); Delvoye v. Lee, 329 F.3d 330 (2003); Mozes v. Mozes, 239 F.3d 1067 (2001); Gitter v.Gitter, 396 F.3d 124 (2005); Murphy v. Sloan, 764 F.3d 1144 (2014); Rey v.

Getta, 2013 BCCA 369, 342 B.C.A.C. 30; Thomson v.Thomson, (SCC), [1994] 3 S.C.R. 551; Mercredi v. Chaffe, C-497/10, [2010] E.C.R. I-14358; Punter v. Secretary forJustice, [2007] 1 N.Z.L.R. 40; Karkkainen v. Kovalchuk, 445 F.3d 280 (2006); Feder v. Evans-Feder, 63 F.3d 217 (1995); In re R.(Children), [2015] UKSC 35, [2016] A.C. 76; Mauvais v. Herisse, 772 F.3d 6 (2014); Guzzo v. Cristofano, 719 F.3d 100 (2013); Larbiev. Larbie, 690 F.3d 295 (2012); Ruiz v. Tenorio, 392 F.3d 1247 (2004); R. v. Barnet London Borough Council, Ex parte Nilish Shah,[1983] 2 A.C. 309; Korutowska-Wooff v.

Wooff (2004), (ON CA), 242 D.L.R. (4th) 385; Rifkin v. Peled-Rifkin, 2017NBCA 3, 89 R.F.L. (7th) 194; A.E.S. v. A.M.W., 2013 ABCA 133, 544 A.R. 246; Silverman v. Silverman, 338 F.3d 886 (2003); Tsai-YiYang v. Fu-Chiang Tsui, 499 F.3d 259 (2007); Baxter v. Baxter, 423 F.3d 363 (2005); L.K. v. Director-General, Department ofCommunity Services, [2009] HCA 9, 237 C.L.R. 582; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 6, 7.

Children’s Law Reform Act , R.S.O. 1990, c. C.12, s. 46(2). Treaties and Other International Instruments Convention on the Civil Aspects of International Child Abduction , Can. T.S. 1983 No. 35,

preamble, arts. 1, 2, 3, 4, 5, 11, 12, 13, 16, 19, 20. Convention on the Rights of the Child , Can. T.S. 1992 No. 3, arts. 8, 11. Vienna Convention on the Law of Treaties , Can. T.S. 1980 No. 37, arts. 27, 31. Authors Cited Fernando, Michelle, and Nicola Ross. “Stifled Voices: Hearing Children’s Objections in Hague Child Abduction Convention Cases in Australia” (2018), 32 Int’l J.L. Pol’y & Fam. 93. Gallagher, Erin. “A House Is Not (Necessarily) a Home: A Discussion of the Common Law Approach to Habitual Residence” (2015), 47 N.Y.U.J. Int’l L. & Pol. 463. Gardiner, Richard K. Treaty

Interpretation , 2nd ed. Oxford: Oxford University Press, 2015. Greene, Anastacia M. “Seen and Not Heard?: Children’s Objections Under the Hague Convention on International Child Abduction” (2005), 13 U. Miami Int’l & Comp. L. Rev. 105. McEleavy, Peter. “Evaluating the views of abducted children: trends in appellate case-law” (2008), 20 C.F.L.Q. 230. Pérez-Vera, Elisa. “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980) , t. III, Child Abduction . Madrid: Hague Conference on Private International Law, 1981. Schuz, Rhona. The Hague Child Abduction Convention: A Critical Analysis . Oxford: Hart Publishing, 2013. Sullivan, Ruth. Statutory

Interpretation , 3rd ed. Toronto: Irwin Law, 2016. United Nations Children’s Fund. Implementation Handbook for the Convention on the Rights of the Child , rev. 3rd ed. by Rachel Hodgkin and Peter Newell. Geneva: United Nations Publications, 2007. Winter, Stephen I. “Home is where the Heart is: Determining ‘Habitual Residence’ under the Hague Convention on the Civil Aspects of International Child Abduction” (2010), 33 Wash. U.J.L. & Pol’y 351.

APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Sharpe and Miller JJ.A.), 2016 ONCA 680 , 133 O.R. (3d) 735, 405 D.L.R. (4th) 98, 84 R.F.L. (7th) 291, [2016] O.J. No. 4800 (QL), 2016 CarswellOnt 14331 (WL Can.), setting aside a decision of the Ontario Divisional Court (Marrocco, Sachs and Varpio JJ.), 2016 ONSC 55 , 344 O.A.C. 159, 70 R.F.L. (7th) 34, [2016] O.J. No. 5 (QL), 2016 CarswellOnt 7 (WL Can.), setting aside a decision of the Ontario Superior Court of Justice (MacPherson J.), 2015 ONSC 5383 , [2015] O.J.

No. 4490 (QL), 2015 CarswellOnt 13100 (WL Can.), granting the respondent father’s application for return of the children to Germany. Judgment accordingly, Moldaver, Côté and Rowe JJ. dissenting. Caterina E. Tempesta , Sheena Scott , Katherine Kavassalis and James Stengel , for the appellant. Steven M. Bookman , Chris Stankiewicz and Gillian Bookman , for the respondent John Paul Balev. Patric Senson and Tammy Law , for the respondent Catharine-Rose Baggott. Donnaree Nygard and Michael Taylor , for the intervener the Attorney General of Canada. Caroline Brett and Rochelle S.

Fox , for the intervener the Attorney General of Ontario. Freya Zaltz , for the intervener the Attorney General of British Columbia. Jeffery Wilson , Farrah Hudani and Jessica Braude , for the intervener Defence for Children International-Canada. Deepa Mattoo and Tiffany Lau , for the intervener the Barbra Schlifer Commemorative Clinic. The judgment of McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon and Brown JJ. was delivered by The Chief Justice — I. Introduction [ 1 ] The Convention on the Civil Aspects of International Child Abduction , Can.

T.S. 1983 No. 35 (“ Hague Convention ”), sets out the rules that apply to the parental abduction of children across international borders. The question before us concerns the application of the Hague Convention concept of habitual residence — a concept not defined in the treaty, but much considered by the courts of subscribing states around the world. [ 2 ] The story begins in Germany, where the family — a father, a mother, and two children, all citizens of Canada — were living. Because the children were struggling in school, the parents decided that the mother should take the children to Canada for

16 months to experience the Canadian school system. During that period, the father purported to revoke his consent and brought an action under the Hague Convention for an order that the children be returned. While he pursued remedies in the German courts — unsuccessfully — the period of consent expired and the mother remained in Canada with the children. After the father resumed the application, a judge of the Ontario Superior Court of Justice ordered that the children be returned to Germany. The Divisional Court reversed this decision. The Court of Appeal reinstated it.

That decision was appealed to this Court. [ 3 ] I note at the outset that events have rendered this appeal moot. The children were returned to Germany in accordance with the application judge’s order. Custody proceedings ensued. The German courts granted the mother sole custody, and the children returned to Canada. However, the issues raised in this appeal are important, and the law on how cases such as this fall to be decided requires clarification.

Hence these reasons. [ 4 ] A finding that the children were habitually resident in Germany at the time of the alleged wrongful retention is a requirement for a return order under the Hague Convention . The parties and interveners put forward three approaches to determining the habitual residence of the children. The appellant, the Office of the Children’s Lawyer (“OCL”), argues for a child-centred approach, which emphasizes the situation and perspective of the children at the time of the application for their return to the original country.

The respondent father argues for an approach based on the intention of the parents at the time the children left their original country. The respondent mother, and a number of interveners, argue for a hybrid approach, which treats the circumstances of the children and the intentions of the parents as factors to be considered in achieving a just result which fulfills the objectives of the Hague Convention . [ 5 ] For the reasons that follow, I conclude that this Court should adopt the hybrid approach to determining habitual residence under

Article 3 of the Hague Convention , and a non-technical approach to considering a child’s objection to removal under Article 13(2). [1] [ 6 ] Because this appeal is moot, it is not necessary to decide whether the application judge erred in ordering the children returned to Germany. II. Background A. Facts [ 7 ] The mother and father were married in Ontario in 2000. They moved to Germany in 2001 and acquired permanent resident status. They had two children, B. and M., who were born in Germany in 2002 and 2005. [ 8 ] The family lived together in Dreieich, in a home that the parents purchased in 2008.

The children attended school in Germany, apart from two visits to Ontario during which time the children attended school in St. Catharines. The parents separated in 2011, but reunited in 2012. During the period of separation, the father had custody of the children. [ 9 ] The children struggled in school, and the parents agreed that the mother should take the children to Canada for the 2013-2014 school year.

The father gave his consent for the children to stay in Canada until August 15, 2014, and he agreed to transfer physical custody of the children to the mother temporarily so that the children could be enrolled in school. The father’s consent letter contemplated the possibility of extension, but not early termination, of the temporary stay. [ 10 ] The children arrived in Canada on April 19, 2013, and began attending school in St. Catharines four days later. The mother and the children left the bulk of their belongings in Germany.

The father maintained weekly contact with the children through Skype and telephone calls, and he visited the children twice in Ontario. One of these visits took place during the alleged wrongful retention. [ 11 ] Because he suspected that the mother would not return the children to Germany at the end of the school year, the father resumed custody proceedings in Germany and purported to revoke his consent to the mother’s temporary custody in March 2014.

He commenced an application seeking the return of the children to Germany pursuant to the Hague Convention on April 11, 2014, through the Central Authority in Germany; this application was received by the Ontario Central Authority on May 5, 2014. On June 26, 2014, he commenced the application before the courts in Ontario. Around the same time, in March of 2014, the father also pursued custody (and relief under the Hague Convention ) before the German courts. Pursuant to a consent order from the Ontario court dated July 17, 2014, the mother remained in Ontario with the children.

During this time, on August 15, 2014, the original consent agreement lapsed. This then became the alleged wrongful retention triggering return under the Hague Convention . The father was ultimately unsuccessful before the German courts, and on February 6, 2015, counsel for the father requested that the matter be set for a hearing before the Ontario court. [ 12 ] On April 21, 2015, the application judge requested that the OCL become involved to represent the interests of the children. [ 13 ] The children were ultimately returned to Germany on October 15, 2016.

The mother initiated proceedings in the German courts for custody and access, and was awarded sole custody. The children returned to Canada on April 5, 2017. B. Judicial History

(1) Superior Court of Justice, 2015 ONSC 5383 [ 14 ] The application judge, MacPherson J., found that the children had “become integrated into their community” in Ontario. She nevertheless held that the children were habitually resident in Germany immediately prior to the alleged wrongful retention. She found that the parents did not have a “settled intention” that the children would stay in Canada, and that the father consented only to a temporary stay in Canada for an educational exchange. [ 15 ] Having concluded that a case for return to Germany had been established, the application judge turned to the

exceptions under the Hague Convention. She rejected the mother’s argument that the children had “settled in” under

Article 12 becausethe father had commenced proceedings within a year of the wrongful retention, barring an

Article 12 defence. Under Article 13(2), shefound that the children were of an age (9 and 12) and degree of maturity at which she could consider their views. However, sheconcluded that the children had not expressed “substantial” objections with the requisite “strength of feeling”. The application judgeordered the return of the children to Germany.

(2) Superior Court of Justice — Divisional Court, 2016 ONSC 55, 344 O.A.C. 159 [16] The Divisional Court allowed the mother’s appeal. In its view, the key question was whether the habitual residenceof the children had changed from Germany to Ontario while they lived in Ontario with the father’s consent, precluding the father fromclaiming their return under the Hague Convention.

The court found that the children’s habitual residence had changed because theparents had a “settled intention” that the children would live temporarily in Canada, and during this time the children became integratedinto the community, speaking English, attending school, and living with their mother and their maternal grandparents.

(3) Court of Appeal, 2016 ONCA 680, 133 O.R. (3d) 735 [17] The Court of Appeal allowed the father’s appeal and restored the order of the application judge. It held that wherethe parents have joint custody, one parent cannot unilaterally change the habitual residence of a child.

Further, a child’s habitualresidence does not shift when one parent gives consent to a time-limited stay in another jurisdiction. [18] While a child’s acclimatization may be relevant to determining habitual residence in some circumstances, if anapplication is brought within one year of a wrongful removal or retention, evidence that a child has “settled in” is not relevant: Article12. The Court of Appeal therefore concluded that the children were habitually resident in Germany at the relevant time, and that therehad been a wrongful retention pursuant to

Article 3 of the Hague Convention. [19] With respect to Article 13(2), the Court of Appeal accorded deference to the application judge’s findings that thechildren’s objections to return were not substantial and did not exhibit the requisite strength of feeling. Therefore, the Court of Appealordered that the children be returned to Germany. [20] Following the release of the Court of Appeal’s decision, the OCL applied for leave to appeal to this Court. The Courtof Appeal and this Court dismissed an application for a stay pending this appeal.

The children were returned to Germany where theGerman courts awarded custody to the mother. The children are now back in Canada. III. Analysis [21] The parents in this case agreed that the mother would take the children from Germany to Canada for educationalpurposes. Subsequently, the father sued under the Hague Convention for return of the children to Germany. We are asked to determinewhat principles apply when a parent in another country seeks to have children in Canada returned under the Hague Convention. A. The Hague Convention [22] The Hague Convention was concluded on October 25, 1980.

With more than 90 contracting parties, it ranks as oneof the most important and successful family law instruments completed under the auspices of the Hague Conference on PrivateInternational Law. Canada has been a party from the beginning. The Hague Convention is implemented by legislation in every provinceand territory. [23] The harms the Hague Convention seeks to remedy are evident. International child abductions have seriousconsequences for the children abducted and the parents left behind. The children are removed from their home environments and oftenfrom contact with the other parents.

They may be transplanted into a culture with which they have no prior ties, with different socialstructures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delayingresolution of custody issues. None of this is good for children or parents. [24] The Hague Convention is aimed at enforcing custody rights and securing the prompt return of wrongfully removedor retained children to their country of habitual residence: see

Article 1; Thomson v. Thomson, (SCC), [1994] 3 S.C.R.551, at pp. 579-81. The return order is not a custody determination:

Article 19. It is simply an order designed to restore the status quowhich existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise begained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custodyand access. [25] Prompt return serves three related purposes. First, it protects against the harmful effects of wrongful removal orretention: see R. Schuz, The Hague Child Abduction Convention: A Critical Analysis (2013), at p. 96; E.

Gallagher, “A House Is Not(Necessarily) a Home: A Discussion of the Common Law Approach to Habitual Residence” (2015), 47 N.Y.U.J. Int’l L. & Pol. 463, at p.465; Thomson, at p. 559; Re B. (A Minor) (Abduction), [1994] 2 F.L.R. 249 (E.W.C.A.), at p. 260. [26] Second, it deters parents from abducting the child in the hope that they will be able to establish links in a newcountry that might ultimately award them custody: see E. Pérez-Vera, “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction (1981),[2] at p. 429; see also W. (V.) v.

S. (D.), (SCC), [1996] 2 S.C.R. 108, atpara. 36; Gallagher, at p. 465; A. M. Greene, “Seen and Not Heard?: Children’s Objections Under the Hague Convention onInternational Child Abduction” (2005), 13 U. Miami Int’l & Comp. L. Rev. 105, at pp. 111-12. [27] Finally, prompt return is aimed at speedy adjudication of the merits of a custody or access dispute in the forum of achild’s habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues: see Schuz, at p. 96;Gallagher, at p. 465.

[28] The heart of the Hague Convention’s prompt return mechanism is

Article 3, which provides that the removal orretention of a child is wrongful (

a) where it is in breach of custody rights under the law of the state in which the child was habituallyresident immediately before the removal or retention and (

b) where those rights were actually being exercised or would have beenexercised but for the wrongful removal or retention. Crucially for the purposes of this appeal, the concept of habitual residence is notdefined in the treaty. [29] If the requirements of

Article 3 are established,

Article 12 requires the judge in the requested state to order “thereturn of the child forthwith” unless certain exceptions apply. These exceptions can be summarized as follows:

(1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

(2) There is grave risk that return would expose the child to physical or psychological harm or place the child in anintolerable situation (Article 13(b));

(3) The child of sufficient age and maturity objects to being returned (Article 13(2));

(4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of therequested state (Article 20); and,

(5) The application was brought one year or more from the date of wrongful removal or retention, and the judgedetermines the child is settled in the new environment (Article 12). [30] Only one requirement of

Article 3 is challenged in this case — whether the children were habitually resident inGermany at the time of the wrongful retention. And only the third exception remains relevant — the children’s alleged objection tobeing returned to Germany. B. Principles of Treaty

Interpretation [31] The Hague Convention is implemented in Ontario by s. 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12. Since the purpose of that

section is to implement the underlying convention, this Court must adopt an

interpretation consistent withCanada’s obligations under it: see Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998]1 S.C.R. 982, at para. 51. [32] Canada is a party to the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (“Vienna Convention”),which provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of thetreaty in their context and in the light of its object and purpose”: Article 31(1); see also Crown Forest Industries Ltd. v. Canada, (SCC), [1995] 2 S.C.R. 802, at para. 22.

These international principles generally parallel the domestic approach to statutoryinterpretation: see R. Sullivan, Statutory

Interpretation (3rd ed. 2016), at p. 279. [33] A clear purpose of multilateral treaties is to harmonize parties’ domestic laws around agreed-upon rules, practices,and principles. The Hague Convention was intended to establish procedures common to all the contracting states that would ensure theprompt return of children: see

preamble. The objective of multilateral treaty making “would be seriously weakened if the courts of everycountry interpreted [the treaty at issue] without any regard to how it was being interpreted and applied elsewhere”: ConnaughtLaboratories Ltd. v. British Airways (2002), (ON SC), 61 O.R. (3d) 204 (S.C.J.), at para. 46. To avoid frustrating theharmonizing purpose behind the Hague Convention, domestic courts should give serious consideration to decisions by the courts ofother contracting states on its meaning and application: see Vienna Convention, Article 31(3)(b); Thibodeau v.

Air Canada, 2014 SCC67, [2014] 3 S.C.R. 340, at para. 50; Stag Line, Limited v. Foscolo, Mango and Co., [1932] A.C. 328 (H.L.), at p. 350; Scruttons Ltd. v.Midland Silicones Ltd., [1962] A.C. 446 (H.L.), at p. 471; Air France v. Saks, 470 U.S. 392 (1985), at pp. 403-4; L.K. v. Director-General, Department of Community Services, [2009] HCA 9, 237 C.L.R. 582, at para. 36. [34] The parties before us raised two further interpretive issues. The first is whether the Hague Convention conflicts withthe Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (“CRC”).

For present purposes, there is no conflict between the twoconventions. Both conventions seek to protect the best interests of children — the one by deterring child abduction and promotingprompt resolution of custody disputes, and the other by ensuring that decision making focuses on the best interests of the child. Bothconventions seek to protect the child’s identity and family relations.

The Hague Convention does this by mandating the return of a child to the place of his or her habitual residence (Article 3) so that a custody determination may be made in that place — a place normallycentral to a child’s identity;

Article 8 of the CRC rests on the same policy. Both conventions seek to prevent the illicit transfer andretention of children: see CRC,

Article 11; United Nations Children’s Fund, Implementation Handbook for the Convention on the Rightsof the Child (rev. 3rd ed. 2007), by R. Hodgkin and P. Newell, at pp. 143-47.

And both conventions accept the principle that a child ofsufficient maturity should have a say in where the child lives, as discussed below in connection with Article 13(2) of the HagueConvention. [35] The second issue raised is whether the Hague Convention should be interpreted consistently with the CanadianCharter of Rights and Freedoms, and in particular the s. 6 guarantee of right of return and the s. 7 guarantee of liberty and security ofperson. The answer is no.

The Charter cannot be used to interpret the Hague Convention or any international agreement: see Febles v.Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at para. 64; Vienna Convention, Articles 27 and 31. In anyevent, when the Hague Convention is interpreted as set out in these reasons, no conflict with ss. 6 or 7 of the Charter is made out. C. Approaches to Habitual Residence Under

Article 3

[36] The father in this case applied under the Hague Convention for the return of the children. To establish a case forreturn under

Article 3, the father had to show that at the time immediately before the alleged wrongful retention (i.e., upon the expiry ofthe father’s consent on August 15, 2014) the children were habitually resident in Germany. Within the overall scheme of the HagueConvention, the purpose of habitual residence in

Article 3 is to define the children to whom the Hague Convention applies. If thechildren were not habitually resident in Germany at the time of the alleged wrongful retention, the Hague Convention does not apply. [37] The requirement that the child’s habitual residence be in the state of the parent seeking return serves to ensure thatthe state to which the child is returned is the proper state to determine custody. In principle, custody should be determined in the state inwhich the child is habitually resident.

This supports the goals of mitigating psychological trauma to the child, respecting the jurisdictionof the state of habitual residence to make decisions on custody and access, and deterring abductions and wrongful retentions. [38] Under Canadian law, whether habitual residence is viewed as a question of fact or a question of mixed fact and law,appellate courts must defer to the application judge’s decision on a child’s habitual residence, absent palpable and overriding error: seeHousen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10, 25 and 36.

The need for deference may be inferred from theintention of the original states parties (see Pérez-Vera, at p. 445) and the decision not to define habitual residence in the body of theHague Convention. The goal was to avoid legal technicalities and to adopt a fact-based determination: see Pérez-Vera, at p. 445. [39] This brings us to the central question in this case — how should an application judge approach the determination ofhabitual residence under

Article 3? The parties and the interveners offer three different approaches for determining a child’s habitualresidence: the parental intention approach, the child-centred approach, and the hybrid approach. [40] The parental intention approach determines the habitual residence of a child by the intention of the parents with theright to determine where the child lives: see Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), at pp. 1076-79; Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005), at pp. 131-33; R. v.

Barnet London Borough Council, Ex parte Nilish Shah, [1983] 2 A.C. 309, at p. 343.[3] Underthis approach, time-limited travel to which the parents agree does not change the child’s habitual residence. “Where the children are sentabroad to live with relatives or for educational purposes, their habitual residence will not change where the parents intend for them toreturn, but may change after a period of time where there is no such intention”: Schuz, at p. 187, fn. 87.

Where the parents have agreedthat the child will stay outside the country of habitual residence for a limited time, that intent governs throughout the agreed period, andallows the parent in the original country to mount a claim for the child’s return under the Hague Convention at the end of the agreedperiod. This approach currently dominates Canadian jurisprudence, where courts in a number of jurisdictions consider parental intent tobe the primary consideration in determining a child’s habitual residence: see, for example, Chan v. Chow, 2001 BCCA 276, 90 B.C.L.R.(3d) 222, at paras. 30-34; Korutowska-Wooff v.

Wooff (2004), (ON CA), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 8;A.E.S. v. A.M.W., 2013 ABCA 133, 544 A.R. 246, at para. 20; Rifkin v. Peled-Rifkin, 2017 NBCA 3, 89 R.F.L. (7th) 194, at para. 2; S.K.v. J.Z., 2017 SKQB 136, at paras. 44-47 ; Monteiro v. Locke (2014), 354 Nfld. & P.E.I.R. 132 (Prov. Ct.), at paras. 13-22. [41] The child-centred approach determines a child’s habitual residence under

Article 3 by the child’s acclimatization in agiven country, rendering the intentions of the parents largely irrelevant. It is backward-focused, looking to the child’s connections withthe state, rather than the more forward-looking parental intention model: see Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993), at p.1401; Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir. 1995), at p. 224.

No Canadian jurisdiction currently follows the child-centredapproach, although courts in Quebec followed this approach (see Droit de la famille — 2454, (QC CA), [1996] R.J.Q.2509 (C.A.)) until 2017, when it was abandoned in favour of the hybrid approach (see Droit de la famille — 17622, 2017 QCCA 529, atparas. 20, 27 and 29-30 ). [42] Finally, the hybrid approach holds that instead of focusing primarily or exclusively on either parental intention or thechild’s acclimatization, the judge determining habitual residence under

Article 3 must look to all relevant considerations arising from thefacts of the case at hand. As noted above, in Canada, the hybrid approach has been adopted in Quebec: see Droit de la famille — 17622,at paras. 29-30. [43] On the hybrid approach to habitual residence, the application judge determines the focal point of the child’s life —“the family and social environment in which its life has developed” — immediately prior to the removal or retention: Pérez-Vera, at p.428; see also Jackson v. Graczyk (2006), (ON SC), 45 R.F.L. (6th) 43 (Ont. S.C.J.), at para. 33.

The judge considersall relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move fromcountry A to country B; and the child’s links to and circumstances in country B. [44] Considerations include “the duration, regularity, conditions and reasons for the [child’s] stay in the territory of [a]Member State” and the child’s nationality: Mercredi v. Chaffe, C-497/10, [2010] E.C.R. I-14358, at para. 56.

No single factor dominatesthe analysis; rather, the application judge should consider the entirety of the circumstances: see Droit de la famille — 17622, at para. 30.Relevant considerations may vary according to the age of the child concerned; where the child is an infant, “the environment of a youngchild is essentially a family environment, determined by the reference person(

s) with whom the child lives, by whom the child is in factlooked after and taken care of”: O.L. v. P.Q. (2017), C-111/17 (C.J.E.U.), at para. 45. [45] The circumstances of the parents, including their intentions, may be important, particularly in the case of infants oryoung children: see Mercredi, at paras. 55-56; A. v. A. (Children: Habitual Residence), [2013] UKSC 60, [2014] A.C. 1, at para. 54;L.K., at paras. 20 and 26-27. However, recent cases caution against over-reliance on parental intention.

The Court of Justice of theEuropean Union stated in O.L. that parental intention “can also be taken into account, where that intention is manifested by certaintangible steps such as the purchase or lease of a residence”: para. 46. It “cannot as a general rule by itself be crucial to the determinationof the habitual residence of a child . . . but constitutes an ‘indicator’ capable of complementing a body of other consistent evidence”:para. 47.

The role of parental intention in the determination of habitual residence “depends on the circumstances specific to eachindividual case”: para. 48. [46] It follows that there is no “rule” that the actions of one parent cannot unilaterally change the habitual residence of achild. Imposing such a legal construct onto the determination of habitual residence detracts from the task of the finder of fact, namely toevaluate all of the relevant circumstances in determining where the child was habitually resident at the date of wrongful retention or

removal: see In re R. (Children) , [2015] UKSC 35, [2016] A.C. 76, at para. 17 ; see also A. v. A ., at paras. 39-40. [ 47 ] The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: Redmond v. Redmond , 724 F.3d 729 (7th Cir. 2013), at p. 746. It requires the application judge to look to the entirety of the child’s situation. While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed.

The temptation “to overlay the factual concept of habitual residence with legal constructs” must be resisted: A. v. A. , at paras. 37-39. D. The Hybrid Approach Should Be Adopted in Canada [ 48 ] The hybrid approach should be adopted in Canada for the following reasons: (1) the principle of harmonization supports the hybrid approach; and (2) the hybrid approach best conforms to the text, structure, and purpose of the Hague Convention .

(1) The Principle of Harmonization Supports the Hybrid Approach [ 49 ] As discussed above, a prime consideration in interpreting treaties is the principle of harmonization. The aim of treaties like the Hague Convention is to establish uniform practices in the adhering countries. This Court has faithfully followed this precept: see, for example, Mugesera v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100, at paras. 82 , 126 and 178; Ezokola v. Canada (Citizenship and Immigration) , 2013 SCC 40 , [2013] 2 S.C.R. 678, at paras. 30 and 42 . It follows that this Court should prefer the

interpretation that has gained the most support in other courts and will therefore best ensure uniformity of state practice across Hague Convention jurisdictions, unless there are strong reasons not to do so. [ 50 ] In recent years, many Hague Convention states have adopted a hybrid approach. Absolute consensus has not yet emerged. But the clear trend is to rejection of the parental intention approach and to adoption of the hybrid approach.

Recent decisions from the European Union, the United Kingdom, Australia, New Zealand, and the United States endorse the hybrid approach. [ 51 ] The Court of Justice of the European Union adopted the hybrid approach to determining habitual residence in Mercredi . It recently confirmed this approach in O.L. , holding that a child’s habitual residence “corresponds to the place which reflects some degree of integration by the child in a social and family environment”, and must be established “taking account of all the circumstances of fact specific to each individual case”: para. 42.

The court held that while parental intention may be relevant in some cases, it must be approached with caution. The European Union comprises 28 countries. The decisions of its Court of Justice bring nearly one-third of the over 90 countries that subscribe to the Hague Convention under the umbrella of the hybrid approach to habitual residence. [ 52 ] The Supreme Court of the United Kingdom followed suit in A. v. A. , abandoning the parental intention approach to habitual residence in favour of the hybrid approach.

Baroness Hale of Richmond concluded that the European approach was preferable to that earlier adopted by the English courts, which had incorrectly shifted the focus of the habitual residence inquiry “from the actual situation of the child to the intentions of his parents”: para. 38. The purposes and intentions of the parents are “merely one of the relevant factors”: para. 54. The Supreme Court recently confirmed the hybrid approach in In re R . [ 53 ] A similar movement away from parental intention and towards the hybrid approach can be seen in New Zealand and Australia.

The New Zealand Court of Appeal, in Punter v. Secretary for Justice , [2007] 1 N.Z.L.R. 40, expressly rejected counsel’s submission that parental purpose should determine a child’s habitual residence: see paras. 91-108. Instead, the court described the considerations relevant to habitual residence in these terms (at para. 88): . . . the inquiry into habitual residence [is] a broad factual inquiry.

Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, . . . settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive.

It should not in itself override what McGrath J. called . . . the underlying reality of the connection between the child and the particular state . . . . [ 54 ] The High Court of Australia approved Punter in L.K .

Notably, that court observed that while Punter ’s references to “settled purpose” directs attention to the intentions of the parents, the question of habitual residence must still be decided “by reference to all the circumstances of any particular case”: para. 44, quoting In re J. (A Minor) (Abduction: Custody Rights) , [1990] 2 A.C. 562 (H.L.), at p. 578 (emphasis added in L.K. ) . [ 55 ] Finally, while courts in the United States disagree on the appropriate approach to determining habitual residence, there is strong support for the hybrid approach: see Redmond , at p. 746; Martinez v.

Cahue , 826 F.3d 983 (7th Cir. 2016), at p. 990; Silverman v. Silverman , 338 F.3d 886 (8th Cir. 2003), at pp. 898-99; Tsai-Yi Yang v. Fu-Chiang Tsui , 499 F.3d 259 (3rd Cir. 2007), at pp. 271-72; Karkkainen v. Kovalchuk , 445 F.3d 280 (3rd Cir. 2006), at p. 297.

In Silverman , the Eighth Circuit Court of Appeals for the United States considered a number of factors relevant to that case: the degree of settled purpose from the perspective of the children, the change in geography (with possessions and pets), the abandonment of the prior residence (including sale of the family home), the passage of time, the parent’s application for benefits, the children’s enrolment in school, and, “to some degree”, the intentions of the parents at the time of the move: see pp. 898-99.

In Tsai-Yi Yang , the Third Circuit Court of Appeals focused on the circumstances of the child in determining habitual residence, but also considered the intentions of the parents to be relevant: see pp. 271-72.

And in Redmond , the Seventh Circuit Court of Appeals considered both the intentions of the parents and the circumstances of the child in determining habitual residence, commenting that “[i]n substance, all circuits — ours included — consider both parental intent and the child’s acclimatization, differing only in their emphasis”: p. 746 (emphasis in original). [ 56 ] It is true that, at one time, many courts applied a parental intention approach to determining habitual residence under the Hague Convention . But more recent cases indicate a clear shift from the parental intention approach to the hybrid approach.

A large number of countries — among them countries with which Canada has close legal ties — now adopt a hybrid approach to determining habitual residence under the Hague Convention . Within Canada, Quebec courts have recently decided to join this international trend: see

Droit de la famille — 17622 , at paras. 29-30 . [ 57 ] The desirability of harmonization weighs heavily in favour of following the dominant thread of Hague Convention jurisprudence, unless there are strong reasons to the contrary. As discussed below, no such reasons have been shown. I conclude that this Court should follow the current trend of Hague Convention jurisprudence and reject the parental intention approach in favour of the hybrid approach.

(2) The Hybrid Approach Best Conforms to the Text, Structure, and Purpose of the Hague Convention [ 58 ] There are good reasons why courts around the world are adopting the hybrid approach.

The hybrid approach best adheres to the text, structure, and purpose of the Hague Convention . [ 59 ] The hybrid approach best fulfills the goals of prompt return: (1) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, (2) encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and (3) protecting the child from the harmful effects of wrongful removal or retention. [ 60 ] The hybrid approach deters parents from attempting to manipulate the Hague Convention .

It discourages parents from attempting to alter a child’s habitual residence by strengthening ties with a particular state (see my colleagues’ reasons, at paras. 134-35; Mozes , at p. 1079), for two reasons: (1) parental intent is a relevant consideration under the hybrid approach, and (2) parents who know that the judge will look at all of the circumstances will be deterred from creating “legal and jurisdictional links which are more or less artificial” (Pérez-Vera, at p. 429). [ 61 ] By contrast, the parental intention approach facilitates manipulation of the Hague Convention scheme.

It may lead parents to exercise intention in ways that artificially maintain the child’s habitual residence in the initial state: see Gallagher, at p. 480; S. I. Winter, “Home is where the Heart is: Determining ‘Habitual Residence’ under the Hague Convention on the Civil Aspects of International Child Abduction” (2010), 33 Wash. U.J.L. & Pol’y 351, at p. 377; Ruiz v. Tenorio , 392 F.3d 1247 (11th Cir. 2004), at p. 1254.

The parental intention approach may also allow parents to create artificial jurisdictional links by way of an agreement stipulating the parents’ shared intent as to the child’s habitual residence: see Barzilay v. Barzilay , 600 F.3d 912 (8th Cir. 2010). The hybrid approach guards against these manipulations. [ 62 ] The hybrid approach also promotes prompt custody and access decisions in the most appropriate forum, and thus offers the best hope of prompt return of the child.

The parental intention and child-centred approaches may, on their face, seem less complex and hence more likely to lead to speedy determination of the habitual residence of the child. But the reality is different. The parental intention approach in practice often leads to detailed and conflicting evidence as to the intentions of the parents: see Schuz, at p. 211. When parents disagree as to their intentions, the application judge may be faced with a large volume of evidence, including oral evidence, on those intentions. The hybrid approach is not an “invitation to litigate”: my colleagues’ reasons, at para. 149.

On the contrary, it is the best assurance of a prompt return of the child and resolution of custody. [ 63 ] This point was pivotal in the recent decision of the Court of Justice of the European Union in O.L .

The court, employing a hybrid approach, stated that “to consider that the initial intention of the parents is a factor of crucial importance in determining the habitual residence of a child would be detrimental to the effectiveness of the return procedure and to legal certainty” (para. 56), and could “compel the national courts either to gather a substantial quantity of evidence and testimony in order to determine with certainty that intention, which would be difficult to reconcile with the requirement that a return procedure should be expeditious, or to issue their judgments while not in possession of all the relevant information, which would result in legal uncertainty” (para. 59).

In a similar manner, the child-centred approach may lead to conflicting evidence, including expert evidence, on the child’s connection to country A and country B. The hybrid approach, by contrast, allows the judge to make an order on all the evidence. In particular, treating parental intention as one consideration among many means that the application judge “may not necessarily have to come to a definitive conclusion as to which parent’s version is more accurate”: Schuz, at p. 212. [ 64 ] The hybrid approach also favours choice of the most appropriate forum.

It focuses on the factual connections between the child and the countries in question, as well as the circumstances of the move — considerations that “mirror the closest connection test often used in determining the forum conveniens ”: Schuz, at p. 210. This allows for custody and access disputes to be adjudicated in the most convenient forum with the best available evidence: see Punter , at para. 187.

The hybrid approach thus avoids the problem that a child may be found to be habitually resident in a country with which the child has little or no connection: see Schuz, at pp. 209-10. [ 65 ] Finally, by focusing on the actual circumstances of the child, the hybrid approach best protects children from the harmful effects of wrongful removal or retention.

Unlike the parental intention approach and the child-centred approach, it allows all relevant factors to be considered in a fact-based inquiry that does not rely on formulas or presumptions: see Redmond , at p. 746. [ 66 ] There is no conflict between the hybrid approach and the “settled in” exception under

Article 12: see my colleagues’ reasons, at paras. 120-21 and 131-32.

Article 12 comes into play only after habitual residence is determined, and functions to provide a limited exception to the requirement that a child wrongfully removed or retained be returned to his or her habitual residence.

It may be that on the hybrid approach habitual residence favours return of the child, but that the one-year period and settling in indicate that the child should not be uprooted and returned to his or her place of habitual residence. [ 67 ] Nor does the hybrid approach “ignor[e] the fact that a child could develop genuine links to a new jurisdiction following a wrongful removal or retention”: my colleagues’ reasons, at para. 146; see also para. 149. Habitual residence is determined immediately prior to the wrongful removal or retention: see Articles 3 and 4.

Subsequent links are relevant only to the exception under

Article 12. [ 68 ] In sum, the hybrid approach represents a principled advance on the parental intention and child-centred approaches. It recognizes that the child is the focus of the analysis, but acknowledges that it may be necessary to consider parental intention in order

to properly assess the child’s connections to a country: see Schuz, at p. 192. It is an incremental response to the jurisprudence and thefact-based nature of the inquiry required by the Hague Convention. [69] In doing these things, the hybrid approach faces the shortcomings of the parental intention approach directly andmoves beyond them. The fact is that the parental intention approach is unable to provide answers in all cases.

Courts using this approachhave admitted that in some circumstances — such as where parental intent is ambiguous or inconclusive — parental intent is notdeterminative, and they have considered objective factors connecting the child to the jurisdiction: see my colleagues’ reasons, at para.116; Gitter, at p. 134; Punter, at para. 107; Murphy v. Sloan, 764 F.3d 1144 (9th Cir. 2014), at p. 1152; Rey v. Getta, 2013 BCCA 369,342 B.C.A.C. 30, at paras. 23 and 32-33. Similarly, courts using the child-centred approach have recognized that parental intention is arelevant factor: see Redmond, at p. 746; Feder, at p. 224.

The hybrid approach simply acknowledges that absolute approaches todetermining habitual residence under the Hague Convention do not work. [70] The reality is that every case is unique. The application judge charged with determining the child’s habitualresidence should not be forced to make a blinkered decision that disregards considerations vital to the case under review. Nor should anapproach that tolerates manipulation be adopted. The application judge is best placed to weigh the factors that will achieve the objects ofthe Hague Convention in the case at hand.

In the end, the best assurance of certainty lies in following the developing internationaljurisprudence that supports a multi-factored hybrid approach. [71] I conclude that the hybrid approach to habitual residence best conforms to the text, structure, and purpose of theHague Convention. There is no reason to decline to follow the dominant trend in Hague Convention jurisprudence.

The hybrid approachshould be adopted in Canada. [72] I come to the question of whether under the hybrid approach, a child’s habitual residence can change while he or sheis staying with one parent under the time-limited consent of the other. [73] Applying the hybrid approach, the application judge considers the intention of the parents that the move would betemporary, and the reasons for that agreement.

But the judge also considers all other evidence relevant to the child’s habitual residence.The court must do so mindful of the risk of overlaying the factual concept of habitual residence with legal constructs like the idea thatone parent cannot unilaterally change a child’s habitual residence, or that a parent’s consent to a time-limited stay cannot shift the child’shabitual residence. The court must also avoid treating a time-limited consent agreement as a contract to be enforced by the court.

Such anagreement may be valuable as evidence of the parents’ intention, and parental intention may be relevant to determining habitualresidence. But parents cannot contract out of the court’s duty, under Canadian laws implementing the Hague Convention, to make factualdeterminations of the habitual residence of children at the time of their alleged wrongful retention or removal. [74] As this appeal is moot, it is unnecessary to decide whether the application judge’s decision that the children werehabitually resident in Germany was properly upheld by the Court of Appeal.

For the purposes of the next issue, I proceed on theassumption that the father established the requirements of

Article 3. E. The Child’s Objection Under Article 13(2) of the Hague Convention [75] The Hague Convention provides exceptions to the general rule that the child must be returned forthwith to thecountry of habitual residence if he or she has been wrongfully removed or retained and the application has been commenced within oneyear.

One of these exceptions is Article 13(2), which provides: The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returnedand has attained an age and degree of maturity at which it is appropriate to take account of its views. [76] The exceptions to the rule that the child should be returned to the country of the child’s habitual residence are justthat — exceptions. Their elements must be established, and they do not confer a general discretion on the application judge to refuse toreturn the child.

Article 13(2) is an exception to the general rule that a wrongfully removed or retained child must be returned to hercountry of habitual residence, and it should not be read so broadly that it erodes the general rule: see Pérez-Vera, at p. 434.

This,however, does not preclude a fact-based, common-sense approach to determining whether the elements of Article 13(2) are established,as discussed below. [77] The application judge’s discretion to refuse to return the child to the country of habitual residence arises only if theparty opposing return establishes that: (1) the child has reached an appropriate age and degree of maturity at which his or her views canbe taken into account, and (2) the child objects to return: see Pérez-Vera, at pp. 433 and 450; Schuz, at p. 319; P.

McEleavy, “Evaluatingthe views of abducted children: trends in appellate case-law” (2008), 20 C.F.L.Q. 230, at p. 232; De Silva v. Pitts, 2008 ONCA 9, 232O.A.C. 180, at para. 42; Thompson v. Thompson, 2017 ABCA 299, at para. 16 ; In re M. (Abduction: Rights of Custody), [2007]UKHL 55, [2008] 1 A.C. 1288, at para. 46. [78] Although much ink has been spilled on precisely what must be shown, it is telling that the Hague Convention doesnot specify particular requirements or procedures to establish sufficient age and maturity and an objection.

Basically, it is for theapplication judge to determine, as a matter of fact, whether those elements are established. In most cases, the object of Article 13(2) canbe achieved by a single process in which the judge decides if the child possesses sufficient age and maturity to make her evidence useful,decides if the child objects to return, and, if so, exercises his or her judicial discretion as to whether to return the child. [79] Determining sufficient age and maturity in most cases is simply a matter of inference from the child’s demeanor,testimony, and circumstances: see Thompson, at para. 17; England v.

England, 234 F.3d 268 (5th Cir. 2000), at pp. 273-74, per DeMossJ., dissenting; M. Fernando and N. Ross, “Stifled Voices: Hearing Children’s Objections in Hague Child Abduction Convention Cases inAustralia” (2018), 32 Int’l J.L. Pol’y & Fam. 93, at pp. 102-3. In some cases, it may be appropriate to call expert evidence or have thechild professionally examined: see R.M. v. J.S., 2013 ABCA 441, 566 A.R. 230, at paras. 25-26; Greene, at pp. 127-28. However, thisshould not be allowed to delay the proceedings.

[80] As in the case of age and maturity, the child’s objection should be assessed in a straight-forward fashion — withoutthe imposition of formal conditions or requirements not set out in the text of the Hague Convention. [81] If the elements of (1) age and maturity and (2) objection are established, the application judge has a discretion as towhether to order the child returned, having regard to the “nature and strength of the child’s objections, the extent to which they are‘authentically her own’ or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with otherconsiderations which are relevant to her welfare, as well as the general Convention considerations”: In re M., at para. 46.

F. Delay [82] The time it took to bring this Hague Convention application to hearing and resolve the ensuing appeals wasunacceptably long. In another context, this Court has recently decried a culture of complacency towards delay within the justice system:see R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 4. Complacency towards judicial delay is objectionable in all contexts, butsome disputes can better tolerate it. Hague Convention cases cannot. [83] The first object of the Hague Convention is the prompt return of children: see

Article 1(a). For this reason,contracting states are required, by

Article 2, to “use the most expeditious procedures available” to secure within their territories theimplementation of the Hague Convention’s objects. [84]

Article 11 specifically requires the contracting states’ judicial authorities to “act expeditiously in proceedings for thereturn of children”. Responsibility for performing Canada’s

Article 11 obligation falls to judges and court administrators. This is unusual,but it is not unheard of. Canada is a party to other treaties that depend, in part, on judicial action to ensure performance. [85] When international agreements come before the courts, performance of Canada’s obligation to apply and interpretthem according to the rules of treaty

interpretation falls to Canada’s judges. Lord Diplock made this point, in respect of United Kingdomcourts, in Fothergill v. Monarch Airlines Ltd., [1981] A.C. 251 (H.L.), at p. 283: By ratifying the Convention, Her Majesty’s Government has undertaken an international obligation on behalf of the United Kingdom tointerpret future treaties in this manner and since under our constitution the function of interpreting the written law is an exercise ofjudicial power and rests with the courts of justice, that obligation assumed by the United Kingdom falls to be performed by those courts. [86] Zingre v.

The Queen, (SCC), [1981] 2 S.C.R. 392, is another example. The central question waswhether the Court should make an evidentiary order in favour of Swiss investigators acting under a Swiss-British extradition treatybinding on Canada. Justice Dickson (as he then was), at p. 409, noted that by granting the order the Court would ensure Canada’sperformance of its treaty obligation to Switzerland: The argument in favour of granting the order in the case at bar does not rest merely on the notion of “comity”. It rests on treaty.

Inresponding affirmatively to the request which has been made the Court will be recognizing and giving effect to a duty to which Canada issubject, by treaty, under international law. [Emphasis added.] [87] So it was up to the judicial authorities in this case to ensure Canada lived up to its obligation to act expeditiously. Iam doubtful that we did so. While each of the three Ontario courts involved in the process gave their judgments quickly, the proceedingstill moved too slowly.

The key steps in this proceeding, and ensuing delays, were as follows: (1) 26 June 2014: The father commences his Hague Convention proceeding by application in the Ontario SuperiorCourt of Justice at St. Catharines. This was about six weeks before August 15, 2014, when the father’s time-limited consent ended. (2) 9 March 2015: The application comes on for hearing before MacPherson J., a delay of nearly seven months afterthe expiry of the consent agreement.

The application judge attributes this delay to the father’s decision to proceed in Germany despitehaving commenced (and not discontinued) in Ontario. (3) 21 April 2015: The application is heard for a second day to consider submissions on whether the court should orderthe appointment of the Office of the Children’s Lawyer.

The court did so, requiring that the OCL act on an expedited basis to provideevidence as to the children’s objections to returning to Germany. (4) 7 August 2015: The OCL files evidence in the proceeding, now nearly one year after the expiry of the consentperiod. (5) 27 August 2015: Three days after the third and final day of the hearing, MacPherson J. orders the children’s returnto Germany with reasons for judgment. (6) 30 November 2015: The Divisional Court hears the mother’s appeal, three months after MacPherson J.’s order. (7) 5 January 2016: The Divisional Court allows the appeal from MacPherson J.’s order. (8) 31 August 2016: The Court of Appeal for Ontario hears the father’s appeal from the decision of the DivisionalCourt.

Over two years have now passed since the expiry of the father’s time-limited consent. (9) 13 September 2016: The Court of Appeal allows the appeal and restores MacPherson J.’s order. The Court ofAppeal notes (at para. 82) that by this time the children have already been in Ontario for more than three years and “moving them backto Germany is likely to be difficult”. (10) 14 October 2016: The OCL files a notice of application for leave to appeal to this Court and a stay of execution ofthe Court of Appeal’s order. The OCL also applies to the Court of Appeal for a stay.

Benotto J.A. of the Court of Appeal dismisses the

application in that court. Justice Moldaver dismisses the stay application in this Court. (11) 15 October 2016: The children return to Germany, 26 months after the expiry of the father’s time-limited consent . (12) 27 April 2017: This Court grants the OCL’s application for leave to appeal, over six months after it was filed . (13) 1 May 2017: Having learned the appeal may be moot, the Court seeks submission from the parties. (14) 9 November 2017: At the hearing of the appe

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