Office of the Children's Lawyer v. John Paul Balev, et al.

(Ontario) (Civil) (By Leave)


Canadian charter (Non-criminal) - Right to security of person (s. 7), Family law, Custody.


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Charter of Rights – Right to security of person – Family law – Custody – Hague Convention – Mother failing to return children to Germany following expiry of father’s time-limited consent to children living in Ontario for educational purposes – Children returned to Germany by court order after more than three years in Ontario – What is the proper interpretation of “habitual residence” in the Convention in light of conflicting jurisprudence and Convention on the Rights of the Child? Whether “habitual residence” should focus exclusively on best interest of child or primarily on intentions of care-givers – Whether views of child should be given due weight in accordance with child’s age and maturity in all matters affecting them in accordance with Article 12 – Whether interpretation the Convention should be in a manner consistent with child’s s. 7 Charter rights and right of child who is a Canadian citizen to remain in Canada under s. 6(1).

The father and mother were married in Canada in 2000. The following year, they moved to Germany where they obtained permission to live and work there. Their children were born in Germany in September, 2000 and in December, 2005 but are Canadian citizens. The family resided together in Germany until April, 2013 when the parents separated for a final time. The father and mother agreed that the mother would return to Canada with the children for educational purposes and that they could remain there until August 15, 2014. The mother and children arrived in Canada in April, 2013. In March, 2014, the father purported to revoke his consent. He commenced a Hague Convention application in Germany and a further one in Ontario. He also applied for custody of the children in Germany. The German court held that the children should remain with their mother in Canada. On appeal, the court determined that Germany lacked jurisdiction as the children were not German citizens and were resident in Canada at the time. Further, Canada had become their habitual residence over the course of 18 months. The father’s German Hague application and appeal were also unsuccessful on the grounds that the children were no longer habitually resident in Germany at the time of the application. The father then pursued his Hague application in Ontario. In April, 2015, the application judge in Ontario ordered that the Office of the Children’s Lawyer intervene. The OCL advised the court that neither child wished to return to Germany.