New Decision Held By Canada's Highest Court May Lead To More International Family Law Litigation Under The Hague Convention

TORONTO, April 20, 2018 /PRNewswire/ – In a six to three decision from the Supreme Court of Canada, it was held that a hybrid approach to determining habitual residence under the Hague Convention should be adopted.

A hybrid approach treats the circumstances of the child and intentions of the parents as factors to be considered in a just result which fulfills the objectives of the Hague Convention. Previously, only the parent’s intentions were considered. Further, the court held that a non-technical approach to considering a child’s objection to removal should be applied.

This decision could potentially increase International Family Law Litigation under the Hague Convention.

“We are pleased with the decision as it conforms Canadian law to evolving international jurisprudence while at the same time validates and confirms that the decisions of the Applications Judge and the Ontario Court of Appeal were correct,” said Steven Bookman, founder of Bookman Law Professional Corporation and lawyer for the respondent John Paul Balev in this Appeal. “By adopting the ‘hybrid approach’, the Supreme Court has redefined how Canadian courts will determine the habitual residence of children under the Hague Convention.”

This approach will permit courts to consider a myriad of factors rather than simply ‘shared parental intent’ as has been the test to date.

“The Supreme Court provided a new framework to analyse habitual residence which is fact driven and needs to be specifically interpreted in each individual case,” said Bookman. “It is now in the hands of the lower courts across Canada to define exactly how this hybrid approach is going to be applied.”

As a result, this is likely to increase litigation amongst the provincial trial courts and the provincial courts of appeal as they attempt to determine how to implement the new ‘hybrid approach’ test set out in this latest Supreme Court decision.

About Bookman Law Professional Corporation 

Steven Bookman is the founding lawyer at Bookman Law. Steven is recognized as a leading family lawyer globally for all issues pertaining to the Hague Convention and international child custody and abduction.

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SOURCE Bookman Law