In international child custody disputes, one of the most critical issues to resolve is determining a child’s habitual residence. This term plays a key role in deciding which country’s courts have jurisdiction over custody matters and whether a child should be returned to a country following an international abduction or custody dispute. But what exactly does habitual residence mean, and how do Canadian courts define it?
The Hague Convention seeks to prevent international child abductions by ensuring that children who are wrongfully removed or retained across borders are returned to their country of habitual residence. According to Article 3 of the Convention, the removal or retention of a child is wrongful when it violates the custody rights of a parent in the child’s country of habitual residence. This means that establishing the child’s habitual residence is a crucial first step in determining whether an international abduction has occurred and whether the child should be returned to that country. In practical terms, this means that if a child is taken from, or not returned to, the country where they habitually reside, the parent seeking the child’s return can ask the courts to order their return under the Hague Convention.
At its core, Habitual residence is the place where a child has established their main home, based on factors like where they go to school, the friends they have, and the general stability of their life. It’s not just about the parents’ intentions or where the child was born—it’s about where the child has settled and feels at home. For example, if a child moves to a new country with their parents, the courts will look at how long they’ve lived there, whether they’ve adapted to the community, and whether their life in that country feels stable. If the child has strong ties to the new country, like attending school and making friends, it might be considered their habitual residence.
In Bureau de l’avocat des enfants c. Balev (2018 SCC 16 (CanLII)), the Supreme Court of Canada clarified that courts are not bound by a rigid checklist of factors when determining a child’s habitual residence. Rather, they must evaluate the child’s overall situation, considering all relevant circumstances in each case, including but not limited to:
- Where the child has lived: How long has the child been living in a certain country?
- The child’s ties to the community: Is the child going to school, making friends, and getting involved in activities?
- The parents’ intentions: Did the parents plan for the move to be temporary or permanent?
- The child’s emotional and social connections: Does the child feel settled in one place, or do they see it as a temporary situation?
Understanding habitual residence is crucial in international custody cases, as it decides where the child should live, and which courts have jurisdiction. At Spunt & Carin, we have experience navigating these complex issues and can guide you through the process with clarity and expertise.
