The “Lion” of family law Mr. Philip Epstein publishes a weekly Family Law newsletter. This essential reading is a critical resource for family law lawyers in Canada seeking to keep up to date on the latest judicial developments.
Mr. Epstein, in his recent newsletter took the Supreme Court of Canada to task and especially now retiring Chief Justice McLachlin, for their recent decision in Office of the Children’s Lawyer v. Baled.
As readers of this blog may be aware, a number of countries are signatories to the Hague Convention dealing with custody disputes that cross national borders. Most countries of the western world are signatories. One of the starting points of such custody disputes is determiningin which country the custody contest be waged. This in turn revolves around the determination of the child’s “habitual residence”.
The courts across Canada have until now used the “parental intention” approach. In essence, where had the parties intended the primary residence of the children to be? As an example a move by one parent to another country for one year for schooling did not meet the parental intention approach.
However, as a result of this decision, the Supreme Court of Canada has now manufactured the “hybrid” approach.
In OCL v. Baled, the family had lived in Germany and the mother then brought the child to Canada for the purpose of a one year visit. The mother refused to return the child and that began a lengthy custody fight. Even though the child did eventually return to Germany before this matter was finally decided by the Canadian courts, the Supreme Court of Canada decided that it was important to weigh in with their view.
Justice McLachlin, writing for the majority felt that this “hybrid” approach requires the trial court to not simply look at what was the parent’s intention, or whether or not the child was now happy in the new jurisdiction but throws the matter open to all relevant considerations that apply to the child and the child’s best interests.
Under the “hybrid” approach, no single factor rules but rather it converts the test to a child’s best interest approach and looks at the child’s habitual residence from that sole perspective.
Mr. Epstein rails lengthily and eloquentlyon how this approach manufactures projects for lawyers and takes relatively settled and predictable law and opens it to endless argument.
For family law lawyers, the most important point to remember is that the law has changed. Depending upon the financial resources of the parties involved this can change that which might have been simple, into a best interests contest.