Office of the Children’s Lawyer v J.P.B. and C.R.B.: Considering the Best Interests of the Child in International Child Custody Cases

On November 9, 2017, the Supreme Court of Canada (“SCC”) heard the case of Office of the Children’s Lawyer v J.P.B and C.R.B. While judgment has yet to be rendered, it is expected that the SCC will answer the following questions:

• First, in child custody cases where one parent lives outside of Canada, how should the courts determine a child’s “habitual residence” under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can TS 1983 No 35 [Convention]?
• Second, should the child’s best interests be taken into consideration when determining their “habitual residence,” and if so, how much weight should be accorded to their interests?

The SCC’s decision is expected to provide much-needed guidance and consistency in determining a child’s “habitual residence” in child custody cases. I predict that the SCC will be persuaded by the appellant’s argument that courts should heavily weigh the child’s best interests in determining their “habitual residence,” and will craft procedures where the child can make their interests known.

Facts

J.P.B. and C.R.B. are Canadian citizens and were married in 2000. The two moved to Germany in 2001, and had two children together, born 2002 and 2005 respectively. The children were primarily raised in Germany, but they lived in Canada with their mother for about a year in early 2010.

In 2013, the parents agreed for the mother to take the children to Canada and attend school there for a year. The father signed a notarized letter granting “temporary transfer of physical custody” to the mother between July 5, 2013 and August 13, 2014. The children travelled to Canada and lived with their mother and grandmother in St. Catharines, Ontario.

On March 11, 2014, the father revoked his consent and wished for the children to return to Germany. The mother refused. The father subsequently initiated custody proceedings according to the Convention in both Germany and in Canada.

Judicial History

In cases of international child custody where one parent refuses to return the child to another parent who lives in another country, the Convention applies. Article 3 of the Convention explains when custodial rights are wrongly breached if a child is removed from another country. It states:

The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. (emphasis added)

Article 12 outlines the remedy for Article 3, stating that child must be returned to the place of habitual residence:

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith… (emphasis added)

Superior Court and Divisional Court

At the Ontario Superior Court of Justice (“ONSC”), the application judge found that the children were habitually resident in Germany, and concluded that their mother’s refusal to send them back to Germany constituted wrongful retention under Article 3 of the Convention. The judge ordered the children to return to Germany (Balev v Baggott, 2015 ONSC 5383).

The mother appealed to Divisional Court, who granted the appeal. The Divisional Court found that the children’s habitual residence had changed from Germany to Canada, pointing to the fact that the father had consented to the children travelling to Canada, and that the children had settled in St. Catharines (Balev v Baggott, 2016 ONSC 55).

Ontario Court of Appeal

Writing for a unanimous court, Sharpe J. of the Ontario Court of Appeal (“ONCA”) dismissed the appeal from the Divisional Court (Balev v Baggott, 2016 ONCA 680). Sharpe J. pointed to the purpose of the Convention, which is to deter child abduction, not to determine the best interests of the children. Sharpe J. found that if a child is wrongfully retained or abducted under Article 3, and the situation does not fall under any of the five exceptions outlined in other articles of the Convention, a court is compelled to order the mandatory return of the child.

Sharpe J. agreed that in order to determine whether the mother wrongfully retained the children and breached the father’s custody rights, Germany must have been the children’s place of habitual residence. Sharpe J. found that Germany is indeed the children’s habitual residence. In his reasons, Sharpe J. pointed to a line of jurisprudence that held a parent cannot unilaterally change the children’s habitual residence without the clear consent of the other parent. As such, Sharpe J. rejected the argument that the father consented to a change in habitual residence when he allowed the mother to take the children to Canada.

In considering the children’s interests, Sharpe J. does not place much weight on their desires to stay in Canada. Rather, he found their objections to returning to Germany to not be “substantial” and rejected the Office of the Children’s Lawyer’s (“OCL”) motion to adduce fresh evidence on the children’s interests.

Commentary

Emphasis on best interests of the child

The OCL has since appealed the ONCA’s decision to the SCC, taking the position that the ONCA failed to give adequate weight to the children’s best interests in their decision. The OCL argues for an interpretation of the Convention that prioritizes the children’s interests, especially in light of Canada’s obligations under the Convention on the Rights of the Child, 28 May 1990, 1577 UNTS 3, Can TS 1992 No 3 [CRC].

The OCL’s position goes against jurisprudence in which courts have applied a very rigid interpretation of the Convention. In Katsigiannis v Kottick-Katsigiannis 55 OR (3d) 456, it is established that the Convention does not engage the best interests of the child test. So long as there is a wrongful removal or retention and an exception is not established, the child must return to their habitual residence. Courts have repeatedly held that the principles of the Convention are not about the children’s interests, but rather to enforce custody rights and to deter parents from international child abduction (Thomson v Thomson, [1994] 3 SCR 551). In Jabbaz v Mouammar [2003] OJ 1616 [Jabbaz], the ONSC expressed concerns about adding flexibility to the interpretation of the Convention, stating that the statute has been accepted by an international community, and for courts to create their own exceptions would interfere with principles of comity.

In spite of all this, I am still persuaded by the OCL’s position to give significant weight to the children’s interests when interpreting their “habitual residence,” and that procedures should be put in place that allow children to make their interests known during legal proceedings.

First, there are aspects of the Convention that allow judges to contemplate the child’s interests in deciding their “habitual residence.” Article 13(2) of the Convention outlines an exception to the mandatory return of wrongfully retained children: “where the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” In Jabbaz, the ONSC agrees that courts must consider Article 13(2) when making a decision on wrongful retention of the children.

At the ONCA, the Court did consider the children’s objections to returning to Germany, including the children’s concerns that they were scared of losing their Canadian friends, that Canada felt like home to them, and quite understandably, that “Germany had too much homework.” As previously mentioned, Sharpe J. found these objections to be insubstantial.

I believe that a proper consideration of Article 13(2) of the Convention provides a legal basis for children to consider their “habitual residence.” In light of Article 13(2), I think the children’s objections are substantial. The ONCA used evidence of the children’s objections from the court of first instance, where the children were ages 10 and 13 respectively. I think that given their ages at the time, the content of their objections made sense and can be considered substantial to children of that age and in their life circumstances.

Notwithstanding the substantial nature of the children’s objections, Sharpe J. should have considered A.M.R.I. v K.E.R. 2011 ONCA 417 [A.M.R.I.], where the ONCA recognized the incredible stress that an order of return can have on a child, noting its “profound and often searing impact on the affected child.” In light of A.M.R.I., perhaps Sharpe J. should have put greater weight on the children’s objections to their return.

Furthermore, it would be wrong not to consider fresh evidence of their circumstances. By the time the ONCA heard the appeal, the children would have been around 12 and 15 respectively. Given that a significant amount of time had passed, and the children had no doubt matured, the ONCA should have considered fresh evidence of their circumstances and views.

Second, the CRC also provides persuasive international legal authority with respect to considering children’s interests. Article 3(1) of the CRC states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The CRC creates room for judges to consider children’s interests in wrongful removal legal proceedings. Given that the SCC has relied upon the CRC before, it would be surprising if they did not find Canada’s obligations under the CRC to be persuasive in granting weight to children’s interests.

It is important to note that by granting weight to children’s best interests in return proceedings, significant procedural fairness should also be granted to the children. In A.M.R.I., the ONCA provides reasons granting significant procedural protections during return proceedings, including “a reasonable opportunity to respond to that case,” the “right to representation,” and “a reasonable opportunity to have his or her views on the merits of the application considered in accordance with the child’s age and level of maturity.”

Conclusion

As we wait for the SCC’s decision, I predict that the SCC will consider the child’s best interests with much more weight than what was afforded at the provincial level. It would be interesting to see whether the SCC will also grant procedural fairness obligations to the child, and if so, what sort of procedures should be put in place.

For the reader’s interest, the parties in the current case have since agreed the children should stay in Canada indefinitely. However, the appeal will still proceed because of the need for the SCC to provide essential legal guidance on future wrongful abduction and retention cases.