Supreme Court of Canada set to decide on international custody case

The case involves John Balev and his wife Catharine-Rose Baggott, both Canadian citizens, who were married in Canada in 2000 and moved to Germany in 2001. Their two children — also Canadian citizens — were born there in September 2002 and December 2005.

The family lived in the European country until Baggott and Balev separated in 2011 and he was given custody. However, they agreed Baggott would take the children to Canada to attend school and he signed a letter transferring custody temporarily to her. The mother and children left most of their belongings in Germany when they returned to Canada in April 2013.

Balev began trying to get the kids back, but Baggott refused. He revoked his custody consent in March 2014 and began court proceedings in Germany under The Hague Convention — an international treaty that seeks to protect children from cross-border abductions.

The German court ruled the children should remain with their mom in Canada but an appellate court decided Germany lacked jurisdiction because the children were not German citizens and were living in Canada at the time. The court also decided Canada had become their “habitual residence.”

Balev pressed his case in Ontario. In April 2015, a Superior Court judge in St. Catharines, Ont., ruled the children’s habitual residence was in Germany — a fact that had not changed during the time they spent in Canada.

The judge ordered their return to Europe even though the Office of the Children’s Lawyer said neither child wanted to go back to Germany.

On initial appeal in Ontario, Divisional Court reversed that decision after finding the children’s usual home had changed to Canada even before their mother had refused to allow them to go back to Germany. The court also found the Hague Convention did not apply.

The Ontario Court of Appeal quashed that finding. Writing for the court, Justice Robert Sharpe said he had “considerable sympathy” for Baggott’s contention that it would be better for the children to stay in Canada, and that moving back to Germany would be difficult given that the kids had been in Ontario for several years.

Nevertheless, the court ruled the children would have to go back to Germany on the basis the German-born children were normally residents there and their mother had violated the Hague Convention by moving them. The court also found the children’s objections to going back — too much homework there and losing friends in Ontario — were insubstantial.

In addition, the court ruled the father would have to provide suitable housing for the mother and children in Germany.

The Children’s Lawyer turned to the Supreme Court of Canada, saying the children had ended up being “harmed” by the operation of an international convention meant to protect them.

Colin Perkel, The Canadian Press

by Canadian Press

Supreme Court of Canada set to decide on international custody case

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