The Hague Convention in Canada – Post Balev

The evolution of Hague Convention cases in Canada post the Supreme Court of Canada decision in O.C.L. v Balev has been disappointing, discouraging, and to left behind parents, devastating. It has become a vehicle that permits the withholding parent to ‘kidnap’ their children with something that borders on impunity.

It is now so simple. Just travel to Canada with your children to visit family, or for a simple vacation, an educational exchange, or with a travel consent from your spouse, and once you arrive send a note to your spouse declaring that you are now separated and neither you, nor the children, will be returning to the country you left. Balev has done all the work for you. The Supreme Court of Canada has made it so very easy and so very convenient for parents wishing to remain with their children in Canada.

It has become an extremely simple process. Make certain your children integrate themselves into the Canadian community, make new friends, engage in community activities and clubs, attend a new school, and have nothing but fun. After all, the voice of the parents has become irrelevant to Canadian judges. The pre-trip plans and commitments, and the promise to return after the Canadian experience are all irrelevant now. Even a short stay in Canada can trump the entire lifetime children spent in their home country before coming to Canada.

The only focus judges are now pursuing is the view of the children. How comforting to know that the views of a twelve-year-old will determine whether the entire family, minus the left-behind parent, will stay in Canada. That is how the courts have been interpreting Balev and in my view they are interpreting it completely wrong.

Balev did not direct hearing judges to defer to the opinion of children. It did not direct judges to ignore parental intention. It did not eradicate the opinions, wishes and desires of parents. It adopted a concept called the ‘hybrid approach’. A simplified definition of this term requires one to adopt a combination of various elements in order to reach a conclusion. No one element carries the decision.

In fact, at paragraph 42 of Balev, Chief Justice McLachlin said just that:

. . . the hybrid approach holds that instead of focusing primarily or exclusively on either parental intention or the child’s acclimatization, the judge determining habitual residence under Article 3 must look to all relevant considerations arising from the facts of the case at hand.

Lawyers and judges across Canada are looking to our appeal courts to refine and define the principles set out in Balev, including how to effectively apply the hybrid approach. Putting judges without any background in this area of the law on an appeal panel is a disservice to not only the legal community, but to the public at large. Judges who lack experience in Hague matters tend to conflate the hybrid test with the best-interests test, which is not to be considered in Hague Convention hearings.

Why then are the majority of Canadian judges only focusing on the views of the children as the determiner for their final decisions. Likely because there is an assumption that no special training is required to hear a Hague case, and rarely is the judge who actually hears the case properly versed in the intricacies of the convention.

This is a complex treaty and lawyers who specialize in Hague Convention cases are fully aware of the subtle nuances that drive well reasoned decisions. Parachuting a judge with a background in corporate law, insurance law, tax law or such into a Hague hearing is doing a disservice to both that judge and the public. He or she will never be in a position to provide us with a decision that will serve to guide future hearings.

Just as the best family law decisions are rendered by a trained and specialized family law judiciary, so would Hague decisions be improved by training a core group of judges in the subtleties of the Hague Convention.