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Canada: Habitual Residence of Abducted Children and Divorce Act Reform

Published online by Cambridge University Press:  09 November 2019

Martha Bailey
Affiliation:
Professor, Faculty of Law, Queen's University, Ontario, Canada
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Summary

INTRODUCTION

Canada's highest court modified the test for determining the habitual residence of children in the context of international child abduction. The federal government moved forward with reforms of the national divorce legislation and statutes dealing with enforcement. The reforms bring Canada's divorce statute and related laws into conformity with two Hague conventions: the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Canada has now taken its first steps toward ratification and implementation of the two Conventions.

HABITUAL RESIDENCE OF CHILDREN

The Convention on the Civil Aspects of International Child Abduction 1 provides that children who have been wrongfully removed or retained be returned to their habitual residence. Contracting Parties to the Abduction Convention have been divided on the issue of whether determination of a child's habitual residence for the purposes of an application should be based on the parental-intention approach, the child-centred approach or the hybrid approach. Within Canada, provinces were divided on this issue, with most adopting the parental-intention approach.

In 2016, the Court of Appeal for Ontario adopted the parental-intention model when determining that two Canadian children born in Germany to Canadian parents were habitually resident in Germany. The children, born in 2002 and 2005, never acquired German citizenship, but, with the exception of brief sojourns to Canada with their mother, they lived and attended school in Germany until April 2013. At that point the children were experiencing school difficulties in Germany. The parents, who were living together with the children, agreed that the children would temporarily move with the mother to Ontario, Canada to attend school. The father transferred physical custody of the children to the mother until August 2014, when it was agreed that the children would return to Germany. But the mother did not return the children to Germany in August 2014, and even before the agreed-upon return date the father was pursuing an application under the Abduction Convention.

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Publisher: Intersentia
Print publication year: 2019

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