Newspaper article The Canadian Press

Supreme Court of Canada Changes Guidelines for International Child Custody Cases

Newspaper article The Canadian Press

Supreme Court of Canada Changes Guidelines for International Child Custody Cases

Article excerpt

SCC gives new guidance on international custody cases


Canada's top court is issuing new guidelines on how international custody disputes should be judged, saying "all relevant circumstances" should be taken into account when deciding what country a child should live in.

The direction from the Supreme Court of Canada comes in a ruling on a custody battle involving parents who clashed on whether their children should live in Canada or Germany. Much of the case hinged on how much say children should have in such matters and what constitutes their "habitual residence."

"The issues raised are important, and the law on how cases such as this fall to be decided requires clarification," the court said in a written decision issued Friday.

To date, judgements in Canada have been based mainly on what a parent's circumstances and "intentions" were when taking a child across borders in breach of a custody agreement, the top court said.

But the legal system should be looking at all factors, including a child's links to a particular country, the circumstances of their movement between countries, and the duration, conditions, reasons for and frequency of their stays in the country, the court ruled.

"The hybrid approach best fulfills the goals of prompt return (by) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, encouraging the speedy adjudication of custody or access disputes in the forum of the child's habitual residence, and protecting the child from the harmful effects of wrongful removal or retention," the court said.

Under the Hague Convention on the Civil Aspects of International Child Abduction -- a treaty that sets out custody laws for the nearly 100 signatory countries -- children must be quickly returned to the country of their "habitual residence" if they are taken away from it by a guardian who does not have permission to do so.

The convention does not, however, define what constitutes a "habitual residence," leaving it up to courts to decide in each case. …

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