"Habitual Residence": SCC Revamps Hague Convention Analysis With Hybrid Approach

On April 20, 2018, the Supreme Court of Canada released its decision in Office of the Children's Lawyer v. Balev, 2018 SCC 16 ("Balev") in which it adopts a new approach for application judges to utilize in determining the habitual residence of children under the Hague Convention.¹

Chief Justice McLachlin (now retired), writing for the majority (with Côté, Rowe, and Moldaver JJ. dissenting), held that Canadian courts should adopt a hybrid approach to determining a child's habitual residence under Article 3 of the Hague Convention. Departing from the body of Canadian case law primarily focused on utilizing the intention of the parents to determine a child's habitual residence, the hybrid approach brings Canada in line with the broader international jurisprudence and requires an application judge to look to all relevant considerations arising from the facts of the case at hand. Perhaps most strikingly, under the hybrid approach the majority made the clear