Confusion remains over Hague Convention, SCC hybrid approach to child residence, lawyer says Friday, September 06, 2019 @ 2:54 PM | By Amanda Jerome

Ludwig v. Ludwig, 2019 ONCA 680

Office of the Children's Lawyer v. Balev, 2018 SCC 16

The Ontario Court of Appeal’s decision on a Hague Convention application in a family dispute has not provided clarity on the hybrid approach to habitual residence established by the Supreme Court of Canada, counsel said. Lawyers involved in the case noted the decision highlights the confusion surrounding Hague matters and the need for the hybrid approach to “evolve.”

“In some respects, it really doesn’t provide any particular guidance to how future cases should be dealt with. It does what a lot of appeal courts do in many cases that they have before them, which is just to say that deference is owed to the application judge or the trial judge, and therefore whatever the trial judge did was their discretion,” said Steven Bookman, of Bookman Law and counsel for the appellant with Gillian Bookman.

Steven Bookman, Bookman Law

“I don’t think there was anything in the Court of Appeal decision that’s going to make it easier for lawyers to prepare for future Hague hearings,” he added. In Ludwig v. Ludwig 2019 ONCA 680, the court heard that the appellant, Nils Christian Ludwig, a German citizen, and the respondent, Jennifer Dee Ludwig, a Canadian citizen, were a married couple who raised their four children in Germany. The family moved to Ontario in 2017, bought a home and was negotiating to buy a coffee shop business. However, the parents decided to separate in 2018.

According to court documents, the appellant father wanted to return to Germany with the children, but the respondent mother wanted to remain in Ontario with the children, who range in age from 9 to 15 years old. The appellant started an application under the Convention on the Civil Aspects of International Child Abduction (Hague Convention) to return the children to Germany.

However, the application judge, Justice Denise Korpan of the Superior Court of Justice, concluded that the children were “habitually resident in Ontario” and dismissed the application. The father to appealed the decision.

Justice Michael Tulloch, for the Court of Appeal, wrote that the “central issue in this case is whether the children were habitually resident in Ontario or in Germany.”

Under the Hague Convention, where the court finds the children to be habitually resident determines whether or not the removal or retention of the children was wrongful and thus whether the court must order the children’s return. If the children were habitually resident in Ontario, then there is no wrongful retention and the Hague Convention does not apply. If the children were habitually resident in Germany, then, subject to the exceptions that the Hague Convention provides, the court must order the return of the children to Germany,” he explained.

Justice Tulloch noted that the appeal presented an opportunity to “consider and apply the new approach to habitual residence that the Supreme Court of Canada adopted in Office of the Children’s Lawyer v. Balev, 2018 SCC 16.”

He wrote that in Balev, the Supreme Court “rejected the parental intention model that Ontario courts had previously used to determine habitual residence.”

“In its place, the Supreme Court adopted the hybrid model, which considers both parental intention and the circumstances of the children in determining where the children are habitually resident,” he added, noting that his judgment would explain the “proper approach to a Hague Convention application and how to apply the hybrid model.”

In his analysis, Justice Tulloch explained that the Hague Convention has two objectives: “to enforce custody rights and to secure the ‘prompt return’ of children who have been wrongfully removed or retained.” He noted that a Hague Conventionapplication has two stages: determining the habitual residence of the child, and, if the child is a habitual resident of the applicant’s state, determining if “one of the exceptions to ordering return applies.”

“If the child is not found to be habitually resident in the state of the applicant, then the Hague Convention does not apply and there is no need to consider the exceptions,” he added.

Justice Tulloch wrote that he “would endorse the two-step approach to habitual residence that the application judge took in this case.”

“Under this approach, the first step is to determine when the alleged wrongful removal or retention took place, and the second step is to determine in which state the children were habitually resident immediately prior to that removal or retention,” he explained.

The court noted that before Balev, Ontario courts “applied a parental intention approach to habitual residence,” which meant that “neither parent could unilaterally change a child’s habitual residence without the other’s consent.”

Justice Tulloch noted that in Balev the Supreme Court “stressed that under the hybrid approach, the application judge must look at ‘all relevant considerations,’ including both parental intention and the circumstances of the children.” He added that the Balev decision “establishes that habitual residence is a question of fact or mixed fact and law and that an application judge’s determination of habitual residence is subject to deference.”

The court noted that on the appeal, the appellant father raised five issues: were Justice Korpan’s reasons inadequate? Did she misapply the hybrid model from Balev? Did she err in determining the children’s habitual residence? Did she err by permitting Office of the Children’s Lawyer (OCL) counsel to give evidence and advance legal argument from the counsel table? And, did she err by permitting the respondent’s counsel to give evidence that was not in the record?

Justice Tulloch rejected these arguments concluding that Justice Korpan “correctly stated and applied the hybrid model.”

“She was entitled to make the factual findings that she did. She did not err in considering the children’s wish to remain in Ontario as an indicator of the strength of their links to Ontario,” he wrote, dismissing the appeal, with Justices Lois Roberts and Bradley Miller in agreement, in a decision released Aug. 30.

Bookman said the major lesson from this decision is that the manner in which Hague Convention cases are being dealt with by Canadian courts is still “very much up in the air and extremely confusing, not only to lawyers, but to the judiciary as well.”

“The Hague Convention is a complex treaty and the problem with the Balev decision is that, although they established general principles, the Supreme Court didn’t provide any particular guidelines about actually how the hybrid approach was really to be applied in Canada. So, what’s happening is that judges are putting most of their emphasis on the wishes of the children and it’s almost evolving into a best interest test, which is not something that is permitted in Hague cases. It also seems to be moving away from the original intention of the convention itself into more of the mobility case realm,” he explained.

Bookman doesn’t believe the Ludwig decision provides any clarity on Balev. He also noted that the Hague Convention is “becoming a tool for people who want to separate to use their children as a means to be able to stay in Canada.”