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

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byAvneet Sidhu
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 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:

  1. to address international child abductions; 
  2. to deter abductions by parents who hope to establish links in a new country that might ultimately award them custody; and 
  3. to promote prompt return to the child’s country of habitual residence to enable speedy adjudication of the custody or access dispute. 


Interestingly, the term habitual residence is not defined by the Hague Convention. 
Balev offers lower Courts guidance in determining a child’s habitual residence. The Court adopts a hybrid approach assessing habitual residence holistically and contextually, considering both the circumstances of the child and the intentions of the parent. “The focal point of the child’s life – ‘the family and social environment in which its life has developed’ – immediately prior to removal” must be considered. The Judge must also consider “all relevant links and circumstances – the child’s link to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B”.


The relevant considerations are many, but include:

  1. the child’s nationality; and 
  2. the duration, regularity, conditions and reasons for the child’s stay in the country.


The parents’ circumstances and intentions for the relocation, may be relevant, specifically if the child is an infant however, the parents’ intentions are not to be heavily weighted nor overemphasized. 

The Court in Balev further determines that the circumstances as a whole must be considered and no one particular factor governs the habitual residence analysis. The “hybrid approach is fact-bound, practical, and unencumbered with rigid rules, formulas or presumptions”. 

Although this test allows Courts significant discretion, it does not prevent errors in its application. In the Alberta Court of Appeal case OM v ED, 2019 ABCA 509, a lower Court determined the child’s habitual place of residence was Spain and not Calgary. The Court of Appeal corrected the error ruling the habitual residence was Calgary when the proper application of habitual residence test was completed. 

Determining a child’s habitual residence can be a difficult process. If you child has been wrongfully removed or retained, the experts at Soby Boyden Lenz LLP can help determine your child’s habitual place of residence and secure the prompt return of your child. 

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