Top court examines handling of international custody cases
Ruling could change how authorities determine where children should be living
It took four years battling her estranged husband in German and Canadian courts before Kate Baggott was finally allowed to settle with her two children in Canada.
On Thursday, the St. Catharines woman hopes to begin the final chapter of her struggle when the Supreme Court of Canada examines the workings of an agreement that determines the fate of children caught up in international child custody and abduction cases.
Ultimately, the court’s ruling could change the way Canadian authorities decide what country these children should live in and result in a more child-centric approach.
In Baggott’s case, the years of legal wrangling meant that her children lived in limbo, moving back and forth between Germany and Canada, disrupting their education and making it impossible to put down roots.
“Ultimately nothing was gained from having gone through this process,” Baggott told the Star.
She said the experience was “surreal” and added the court process was too focused on legal arguments instead of what is best for the children.
The Supreme Court’s ruling will have no effect on Baggott’s case, after a German court finally awarded her full custody of her son,15, and daughter, 11, from their father John Paul Balev and let the three return to Canada in April.
But the court decided to proceed anyway with the appeal of Ontario Court of Appeal ruling as it recognized the importance of the issue.
All the parties at Thursday’s hearing hope the high court can provide guidance on the definition of “habitual residence” under The Hague Convention, an international child protection agreement recognized by 98 countries.
The designation determines where a child in a custodial dispute should temporarily stay while the case is ongoing and which country has the authority to adjudicate the case.
“This comes down to how we figure out where a child’s habitual residence is. Right now, there is no national consistency on this,” said Patric Senson, a co-counsel for Baggott, one of eight parties standing before the Supreme Court.
“Whatever comes out, it will provide some clarity for everybody involved in this situation so everyone will be working from the same page . . . reduc(ing) the amount of litigation and stress for the child and litigants.”
In Canada and elsewhere, different courts have different interpretations of habitual residence, with some defining it as the last place of the residence agreed upon by the parents prior to the removal of the child by one party, while others base it on the children’s best interests.
The appeal to the Supreme Court was brought by the Office of the Children’s Lawyer (OCL), an Ontario body that represents children under 18 in cases involving custody, access and child protection, as well as in civil, and estates and trusts cases.
Baggott, a writer, and Balev, a computer programmer, married in Toronto in 2000 and moved to Germany on work permits the following year for his job. Their two children were both born there, but were not eligible for German citizenship.
The couple’s relationship fell apart, but the family still lived in the same house when the mother and their two children moved back to Canada in 2013, after the father agreed to let the children stay with their mother in Canada for 16 months.
However, according to Baggott’s submission to the high court, Balev later went to German authorities claiming Baggott abducted their children, sparking the four-year legal battle.
Last September, the Ontario Court of Appeal dismissed the children’s objections to returning to Germany and ruled that the mother breached The Hague Convention and they must all go back because Germany was their “habitual residence.”
In its factums to the Supreme Court, the OCL said the appeal court decision to return Baggott’s two children to Germany was wrong because it failed to consider the best interests of the minors, who at that point had lived in Canada for three years, were in school and had friends and support in the community.
“The goal of deterring ‘abduction’ and protecting the interests of children generally was prioritized over the rights of the individual children before the courts,” the OCL said in its submission.
“As a result, (the children) were harmed by the operation of the very Convention that was meant to protect them. In this appeal, the OCL urges an interpretation of the Convention that is child-centric, consistent with Canada’s obligations.”
However, the attorneys general in Ottawa, Ontario and British Columbia argue the current approach in determining the child’s residence offers an “objective” guide for Canadian authorities to follow.
“The Convention is intended to combat international child abductions, including the wrongful retention of children in foreign states and to protect children from their harmful effects,” said the submission from the federal attorney general.
While the case is still up in air, both Baggott and Balev said in their submissions the fight has exhausted their financial resources.
“The Hague Convention is meant for genuine cases of abduction when one parent disappears with the child in the night,” said Baggott, who is still struggling to turn a new page of her life with her two children. “It is not meant for cases like ours.”