In a recent decision, the Supreme Court of Canada addressed children’s interests in the context of international child abduction and custody cases. The majority emphasized that while parents’ intentions and interests are important, they form only part of the overall analysis. Other factors to consider are the children’s best interests, habitual residence of the children, and their preferences (i.e. to relocate or not to relocate).
Canada’s highest court said judges must take into consideration how long the children have lived in one country, their standards of living, reasons for the stay or relocation elsewhere, as well as their citizenship and nationality.
In this child custody case, the parents consisted of a Canadian-born mother and her former husband of dual citizenship, Bulgarian and Canadian. They married in Toronto, in year 2000, and eventually moved to Germany where their two children of the marriage were born. When the relationship broke down, the husband, who had custody of the children, consented to his wife and the children moving to St. Catharines, Ontario, for the 2013-2014 school year.
When the consent period expired, the husband sued the wife in the Ontario Superior Court of Justice for abduction of his children under the Hague Convention. The husband’s lawyer argued that the children should be returned to Germany pursuant to the habitual residence clause. By the time this matter reached the Supreme Court of Canada, it had been resolved by the mother being allowed to reside with the children in Canada.
The entire process, however, took two years. The children suffered the most; they travelled back-and-forth between Canada and Germany, and then back to Canada, depending upon which parent got the upper hand at court. The mother ultimately got custody of the children and was allowed to remain with them in Canada. The children are now 15 and 12 years old, respectively.
The Supreme Court of Canada decided that the issues raised in this matter warranted further input. The result? A 6-3 decision that raises further questions and a scathing dissent that addresses several concerns. Ultimately, the majority states that a hybrid and flexible approach should apply in these cases, which allows for the children’s views and wishes to be given new weight. “What’s really great about this decision is we are taking seriously that children have ideas. They are not a property. They do have a voice and their opinions should be part of the process,” added Patric Senson, the mother’s lawyer.
“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,” the court said. “But there is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child.”
If you or someone you know needs legal advice with respect to parenting, custody and access issues, or relocation, contact the experienced family law lawyers at Nanda & Associates today. We can help you navigate this and other increasingly complex family law issues in a timely, professional and cost-effective manner.
