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Hague Convention and Habitual Residence: New Developments

In 2018 the Supreme Court of Canada modified the legal definition of what it means to be "habitually resident" in a country, which Canadian judges must follow when ruling on international parental abduction cases.

The Hague Convention is an international law which mandates that Contracting States must order the return of a child that has been wrongfully removed or wrongfully retained to their country of habitual residence (unless one of the exceptions applies). 

There has been much jurisprudence regarding the definition of habitual residence under Article 3 of the Hague Convention. In some cases, the issue of habitual residence can be easily determined. However, sometimes there is a dispute as to which country is the place of habitual residence. For example, what if a family has a home in two different countries and they regularly reside in both places? What happens when a family moves to a country for a job or an educational opportunity but the parents ultimately disagree as to whether it was a permanent or temporary relocation?

In Office of the Children's Lawyer v Balev, 2018 SCC 16, the Supreme Court of Canada addressed the complex definition of habitual residence in Hague cases and created a new hybrid approach for Courts to follow. Previously, Canadian courts mainly defined habitual residence by focusing on the parent's settled intention, but now the definition has been adjusted to also consider habitual residence from a child-centered approach, thus being a hybrid analysis of the two approaches. Courts will now look at all relevant considerations and factors including the child's connections in each country.

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