OCL vs. Balev: No, the Sky is not Falling

The Supreme Court released its decision in our case, the Office of the Children’s Lawyer vs. Balev today.  I am glad to report that a majority of the Supreme Court adopted our submissions entirely and made significant changes to the interpretation of the concept of “habitual residence” under the Hague Convention on the Civil Aspects of Child Abduction.  Specifically, the Supreme Court rejected the “parental intention” approach to the interpretation of habitual residence in favour of the hybrid approach.  You can read the complete judgment here.

This decision is a significant departure from the established definition of habitual residence adopted by most Canadian courts up to this point.  By doing so, the Supreme Court has finally aligned Canadian jurisprudence to the approach adopted by most of the signatories of the Hague Convention, including the UK, the European Union, Australia, New Zealand, and some circuit courts in the US.  It also signals a more respectful approach towards the views of children, ensuring that they are listened to, without making them determinative.

Predictably, immediately after the decision was released, several commentators and the Respondent father reacted in an alarmist fashion, claiming that the Supreme Court’s decision would encourage abductions to Canada and that it would increase litigation and prolong cases.  There are several reasons why this reaction misses the mark completely.  Namely:

1. Detractors claim that focusing on parental intent is the only way to ensure that agreements between parents are respected. In fact, the hybrid approach does not throw away parental intent.  Under the hybrid model, parental intent is still an important factor and, as suggested by the majority, could be a determining factor in many cases.  The hybrid approach is most properly thought of as an objective approach where the trier of fact assesses all the facts to determine whether the picture, in its entirety, suggests that one jurisdiction is the habitual residence.  Parental intent continues to play a role in the hybrid model.  In fact, in most cases, the hybrid approach and parental intention approach come to exactly the same conclusion, namely the return of the children to the original jurisdiction.  It is only in difficult cases, such as this one, where the two may depart from one another.

2. Contrary to popular belief, the parental intention approach engenders significant litigation because courts are asked to determine something that is inherently in the minds of the litigants.  Both litigants will invariably behave as they usually do in litigation, that is, claim they each intended something different.  In our system of law, the only way to assess this invisible intent is to have oral evidence to assess each person’s credibility – or in other words, a trial.  This has been noted by various commentators as a reason why the parental intention approach leads to more litigation, not less.

3. There is no evidence to support the assertion that the hybrid approach leads to more litigation. New Zealand has adopted this approach since 2007; Australia since 2009; the European Union since 2010; the UK since 2013.  The Respondent father, and some of the intervenors, who argued in favor of the parental intent approach could have produced statistics and studies to suggest that the hybrid approach has led to a significant increase in litigation and delay in these countries.  In fact, none of them did.  What was before the court, however, was the opposite, which is, that Canada lags far behind in terms of speed of resolving such disputes.  The evidence is that the parental intention approach is not working, not the other way around.

4. Finally, neither the parental intention approach nor the hybrid approach deters the removal of children. Rarely, if ever, do would-be abductors obtain legal advice from countries they intend to depart to in an effort to circumvent the Convention.  What we know from research is that most parents who leave with children go to places where they have family or other connection.  Whether that particular receiving state adopts the parental intention or hybrid approach is usually of no consequence to the parent who is leaving.  It defies logic to suggest that one approach would have a greater deterrent effect than another.

The rejection of the parental intention approach does not mean the sky is falling.  Instead, what it means is that children who are taken to Canada from Signatory States will benefit from an interpretation of the Convention that is consistent with international jurisprudence.  I would have thought this would be something for us to be proud of.