The Supreme Court of Canada has granted leave to hear an appeal relating to the Hague Convention on the Civil Aspects of International Child Abduction.
The father of the children in question, a permanent resident of Germany, obtained an order in Ontario under the Convention for the children to move to Germany, on the grounds that Germany, where they were born and lived until 2013, is their “habitual residence”. The children had gone to Canada on a temporary basis for educational reasons. The father had sued in Germany first; an appeal court there determined that Germany lacked jurisdiction as the children were not German citizens and were resident in Canada at the time. He then sued in Ontario.
The appeal is brought by the Children’s Lawyer from an order of the Ontario Court of Appeal for them to go to Germany, over the children’s objections.
Issues to be addressed include the meaning of “habitual residence” in the Convention, and whether it should be determined having regard only for the best interests of the child or also with regard to the intentions of the care givers. As well, what weight ought to be given to the preferences of the children? There are also Charter issues, i.e. 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 appeal might not be heard because it has become moot. The children in question returned to Canada after the leave application was filed, as the result of the mother obtaining an order for custody from a court in Germany.