The Hague Convention and Establishing a Child’s Habitual Place of Residence

The purpose of the Hague Convention is to enforce custody rights and to secure the return of wrongfully removed or retained children to the country they are habitually resident. The Supreme Court of Canada case, Office of the Children’s Lawyer v Balev, 2018 SCC 16, is the leading case on habitual residence. Balev states the aim of the Hague Convention is threefold:

The Forbidden Question in Mobility Proceedings 

Unless there is express consent from the other parent, a party seeking to relocate with children must bring a mobility application before a judge or arbitrator. Mobility is a highly litigated area of the law, which carries with it a high emotional toll for all parties involved. In the midst of that emotion, a common question raised by the non-moving parent is this: If my ex-spouse is not permitted by the Court to move with the children, won’t he or she just cancel the intended move altogether?

Defiance of an existing parenting order during the pandemic

The pandemic has resulted in loving parents having concerns for the safety of their children when they are in the care of the other parent. Many parents are concerned about what precautions the other may be exercising during their parenting time and who the child may be coming into contact with.

Some may believe their former partner or spouse is not taking the pandemic serious enough. This has resulted in parents unilaterally defying existing parenting orders.