



COURT OF APPEAL FOR ONTARIO

CITATION: Ludwig v. Ludwig, 2019 ONCA 680

DATE: 20190830

DOCKET: C66504

Tulloch, Roberts and Miller
    JJ.A.

BETWEEN

Nils Christian Ludwig

Applicant/Appellant

and

Jennifer Dee Ludwig

Respondent/Respondent

Steven M. Bookman and Gillian Bookman,
    for the appellant

Ken J. Birchall, for the respondent

Patric Senson and Sheena Scott, for the
    Office of the Childrens Lawyer

Heard: June 3, 2019

On appeal from the order of Justice Denise
    M. Korpan of the Superior Court of Justice, dated January 4, 2019, with reasons
    reported at 2019 ONSC 50.

Tulloch J.A.:

I.        OVERVIEW

[1]

This appeal concerns the
Convention on the
    Civil Aspects of International Child Abduction
,

Can. T.S. 1983
    No. 35 (
Hague Convention
). The appellant, Nils Christian Ludwig, and
    the respondent, Jennifer Dee Ludwig, are spouses who raised their four children
    in Germany. They then moved with their children to Ontario. Following this
    move, the appellant and respondent separated. The appellant wanted to return to
    Germany with the children. The respondent wanted to remain in Ontario with the
    children. The appellant commenced an application under the
Hague Convention
seeking the childrens return to Germany. The application judge concluded that
    the children were habitually resident in Ontario and dismissed the appellants
    application. The appellant appeals from this decision.

[2]

The central issue in this case is whether the
    children were habitually resident in Ontario or in Germany. Under the
Hague
    Convention
, where the court finds the children to be habitually resident
    determines whether or not the removal or retention of the children was wrongful
    and thus whether the court must order the childrens return. If the children
    were habitually resident in Ontario, then there is no wrongful retention and
    the
Hague Convention
does not apply. If the children were habitually
    resident in Germany, then, subject to the exceptions that the
Hague
    Convention
provides, the court must order the return of the children to
    Germany.

[3]

This appeal presents this court with an
    opportunity to consider and apply the new approach to habitual residence that
    the Supreme Court of Canada adopted in
Office of the Childrens Lawyer v.
    Balev
, 2018 SCC 16, [2018] 1 S.C.R. 398. In
Balev
, the Supreme
    Court rejected the parental intention model that Ontario courts had previously
    used to determine habitual residence. In its place, the Supreme Court adopted
    the hybrid model, which considers both parental intention and the circumstances
    of the children in determining where the children are habitually resident.
    Accordingly, I offer some comments in this judgment to set out and explain the
    proper approach to a
Hague Convention
application and how to apply the
    hybrid model.

[4]

I would dismiss the appeal. I conclude that the
    application judge correctly stated and applied the hybrid model. She was
    entitled to make the factual findings that she did. She did not err in
    considering the childrens wish to remain in Ontario as an indicator of the
    strength of their links to Ontario. Nor did she consider the evidence and
    submissions of counsel for the Office of the Childrens Lawyer (OCL) as
    opinion evidence.

II.       FACTS

[5]

The appellant and the respondent are the parents
    of four children: N. (15 years old), I. (13 years old), D. (12 years old), and
    P. (nine years old). The appellant is a German citizen and the respondent is a Canadian
    citizen. They and their children lived almost exclusively in Germany since the
    appellant and respondent married in 2001. The children are dual citizens but
    only had German passports.

[6]

The parents and their children moved to Ontario
    on August 3, 2017. Prior to the move, the parents purchased an Ontario home and
    began negotiations to buy a coffee shop business in Ontario. These negotiations
    were ongoing for several months following the move but ultimately proved
    unsuccessful. The parents left some belongings in Germany but brought most
    belongings and important possessions to Ontario. They also spent substantial
    sums renovating their Ontario home and purchasing home furnishings, cars, and
    landscaping equipment. The appellant entered Canada as a visitor and lacked a
    work permit. The children had obtained extended visas which were to expire on
    September 30, 2018.

[7]

The parents exchanged numerous text messages
    both before and after the move. In the messages, both parents expressed
    uncertainty about the duration of the move to Ontario and whether and when they
    would return to Germany.

[8]

The children soon developed ties to Ontario.
    They successfully completed the 2017-2018 school year in Ontario and did well
    in school. They made friends and enrolled in advanced classes, sports, and
    other activities. In particular, they developed close ties with their maternal
    extended family, which also resided in Ontario.

[9]

The parents separated in March 2018. After the
    separation, the appellant made plans to return to Germany. On July 23, 2018,
    the respondent told the appellant that she intended to remain in Canada with
    the children. Four days later, she issued a divorce application in Ontario that
    included a claim for custody of the children.

[10]

In August 2018, the appellant commenced an
    application under the
Hague Convention
for the return of the children
    to Germany. Before the hearing of the application, Grace J. ordered the
    involvement of the OCL. His order gave the OCL full power to act for
    thechild(ren). Campbell J. subsequently ordered that OCL counsel could advise
    the court of the childrens views and preferences from the counsel table, as the
    parties had agreed.

[11]

Before the application hearing, OCL counsel (not
    Mr. Senson or Ms. Scott) met with and interviewed the children and provided a
    letter to both parties summarizing the childrens views and preferences. The
    letter stated that N., I., and D. wished to remain in Ontario, while P. did not
    express any concrete views or preferences. OCL counsel stated that she included
    a discussion of the consistency, clarity, and independence of the childrens
    views and preferences in the letter because she had an obligation to consider
    those factors in taking a position on behalf of the children. She stated that
    she had no concerns about both the clarity of all four childrens views and
    the independence of the views of N. and I.

III.      STATUTORY PROVISIONS

[12]

The Ontario Legislature adopted the
Hague
    Convention
into Ontario law via s. 46(2) of the
Childrens Law Reform
    Act
, R.S.O. 1990, c. C.12. Articles 1, 3, 8, 12, 13, and 20 of the
Hague
    Convention
are most relevant to this case. These provisions read as
    follows:

Article 1

The objects of the present Convention are -

a)
to secure the
    prompt return of children wrongfully removed to or retained in any Contracting
    State; and

b)
to ensure that
    rights of custody and of access under the law of one Contracting State are
    effectively respected in the other Contracting States.



Article 3

The removal or the retention of a child is to
    be considered wrongful where 

a) it is in breach of rights of custody
    attributed to a person, an institution or any other body, either jointly or
    alone, under the law of the State in which the child was habitually resident
    immediately before the removal or retention; and

b) at the time of removal or retention those
    rights were actually exercised, either jointly or alone, or would have been so
    exercised but for the removal or retention.

The rights of custody mentioned in
    sub-paragraph a) above, may arise in particular by operation of law or by
    reason of a judicial or administrative decision, or by reason of an agreement
    having legal effect under the law of that State.



Article 8

Any person, institution or other body claiming
    that a child has been removed or retained in breach of custody rights may apply
    either to the Central Authority of the child's habitual residence or to the
    Central Authority of any other Contracting State for assistance in securing the
    return of the child.



Article 12

Where a child has been wrongfully removed or
    retained in terms of Article 3 and, at the date of the commencement of the
    proceedings before the judicial or administrative authority of the Contracting
    State where the child is, a period of less than one year has elapsed from the
    date of the wrongful removal or retention, the authority concerned shall order
    the return of the child forthwith.

The judicial or administrative authority, even
    where the proceedings have been commenced after the expiration of the period of
    one year referred to in the preceding paragraph, shall also order the return of
    the child, unless it is demonstrated that the child is now settled in its new
    environment.

Where the judicial or administrative authority
    in the requested State has reason to believe that the child has been taken to
    another State, it may stay the proceedings or dismiss the application for the
    return of the child.



Article 13

Notwithstanding the provisions of the
    preceding Article, the judicial or administrative authority of the requested
    State is not bound to order the return of the child if the person, institution
    or other body which opposes its return establishes that -

a) the person, institution or other body
    having the care of the person of the child was not actually exercising the
    custody rights at the time of removal or retention, or had consented to or
    subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her
    return would expose the child to physical or psychological harm or otherwise
    place the child in an intolerable situation.

The judicial or administrative authority may
    also refuse to order the return of the child if it finds that the child objects
    to being returned and has attained an age and degree of maturity at which it is
    appropriate to take account of its views.

In considering the circumstances referred to
    in this Article, the judicial and administrative authorities shall take into
    account the information relating to the social background of the child provided
    by the Central Authority or other competent authority of the child's habitual
    residence.



Article 20

The return of the child under the provisions
    of Article 12 may be refused if this would not be permitted by the fundamental
    principles of the requested State relating to the protection of human rights
    and fundamental freedoms.

IV.     DECISION OF THE APPLICATION JUDGE

[13]

The application judge ruled that the children
    were habitually resident in Ontario and dismissed the appellants application.
    She articulated the hybrid approach from
Balev
by quoting extensively
    from the majority decision. She then approached her analysis in two steps:

1)

When did the retention at issue take place?

2)

Immediately prior to the retention, in which state were the children
    habitually resident?

[14]

In step one, the application judge found that
    the retention at issue took place immediately prior to September 2018. She
    based this finding on the appellants allegation in his
Hague Convention
application that the children were to return to Germany by September 2018.

[15]

In step two, the application judge first
    determined that she could not find a shared parental intention to return to
    Germany after a time-limited stay in Ontario with an expiry date. She
    emphasized the facts that the parents brought most of their belongings and
    important possessions to Ontario and spent significant sums on renovating their
    Ontario home. She relied on text messages tending to show the parents were
    undecided on whether or when to return to Germany. In addition, the application
    judge highlighted the appellants signing of a form registering one of the
    children in an advanced class for the 2018-2019 Ontario school year, as well as
    the appellants suggestion that the respondent should get the children covered
    under OHIP.

[16]

The application judge next compared the circumstances
    of the children in Germany and Ontario and determined that their habitual
    residence was Ontario. She found that the childrens family environment and
    social environment in Germany and Canada were similar. She accepted that the
    childrens experiences in Germany were of longer duration. However, she
    emphasized that their experiences in Canada were more immediate and were for a
    significant period of time. The children were integrated into and doing well in
    their Ontario schools. The application judge found as a fact that the children
    have a closer relationship with their extended maternal family in Canada than
    with their extended paternal family in Germany. She also referred to the wish
    of the three elder children to remain in Canada. Balancing all these factors,
    the application judge concluded that the childrens lives were centered in
    Canada immediately prior to September 2018. Accordingly, she dismissed the
    appellants application.

V.      ISSUES

[17]

The following issues arise on this appeal:

1.

Were the application judges reasons inadequate?

2.

Did the application judge misapply the hybrid model from
Balev
?

3.

Did the application judge err in determining the childrens habitual
    residence?

4.

Did the application judge err by permitting OCL counsel to give
    evidence and advance legal argument from the counsel table?

5.

Did the application judge err by permitting the respondents counsel
    to give evidence that was not in the record?

VI.     ANALYSIS

A.

understanding the
hague convention
analytical framework

[18]

Before analyzing the appellants specific
    grounds of appeal, it is appropriate for me to provide some general comments on
    the analytical framework that governs
Hague Convention
proceedings,
    especially the hybrid model for determining habitual residence that the Supreme
    Court adopted in
Balev
. I offer these comments as useful guidance to litigants,
    lawyers, and judges seeking to understand and apply the proper approach to
Hague
    Convention
proceedings.

(1)

Objects of the
Hague
    Convention

[19]

The
Hague Convention
has two objects:
    to enforce custody rights and to secure the prompt return of children who
    have been wrongfully removed or retained:
Balev
, at para. 24;
Hague
    Convention
, Article 1. The object of prompt return serves three purposes:
    it protects against the harmful effects of wrongful removal or retention, it
    deters parents from abducting the child in the hope of being able to establish
    links in a new country that might award them custody, and it aims at rapid
    resolution of the merits of a custody or access dispute in the forum of a
    childs habitual residence:
Balev
, at paras. 25-27. The
Hague Convention
is not concerned with determining rights of custody on the merits:
Balev
,
    at para. 24. In fact, Article 16 expressly prohibits a court charged with a
Hague
    Convention
proceeding from determining the merits of custody rights until
    the court has determined that a child is not to be returned.

[20]

The
Hague Convention
aims to achieve
    its two objects by permitting any person, institution, or other body that
    claims that a child has been wrongfully removed or retained to apply for the
    return of the child to the country in which the child is habitually resident:
    Article 8. If the person alleged to have wrongfully removed or retained the
    child refuses to return the child, then it falls to the court to decide whether
    the child should be returned.

(2)

Analytical Framework for
Hague Convention
Proceedings

[21]

There are two stages to a
Hague Convention
application: determining the habitual residence of the child, and, if the child
    is found to be habitually resident in the state of the applicant, determining
    if one of the exceptions to ordering return applies. If the child is not found
    to be habitually resident in the state of the applicant, then the
Hague
    Convention
does not apply and there is no need to consider the exceptions:
    see
Balev
, at para. 36.

(a)

Habitual Residence

[22]

Habitual residence is central to the
Hague
    Convention
because it defines when a removal or retention of a child is
    wrongful. As Article 3(a) of the
Hague Convention
provides, the
    removal or retention of a child is only wrongful if it is in breach of custody
    rights under the law of the state in which the child was 
habitually resident
immediately before the removal or
    retention (emphasis added). For example, in this case, the application judges
    finding that the children were habitually resident in Ontario immediately prior
    to the date of the respondents retention of the children in Ontario led her to
    conclude that this retention was not wrongful, as it did not breach custody
    rights under Ontario law. Conversely, if the application judge had found that
    the children were habitually resident in Germany immediately prior to the date
    the respondent retained the children in Ontario, the application judge would
    have had to find the retention was wrongful. It would have been in breach of the
    appellants custody rights under German law for the respondent to retain the
    children in Ontario.

[23]

I would endorse the two-step approach to
    habitual residence that the application judge took in this case. Under this
    approach, the first step is to determine when the alleged wrongful removal or
    retention took place, and the second step is to determine in which state the
    children were habitually resident immediately prior to that removal or retention.

(i)

Step One: Date of Alleged Wrongful Removal or
    Retention

[24]

The first step of analysis is for the court
    to determine the date of the alleged wrongful removal or retention. This date
    is central to the analysis because the court assesses in which country the
    child was habitually resident immediately prior to this date. A childs
    attachment to a country that is developed after the date of alleged wrongful
    removal or retention is only relevant to the Article 12 settled in exception:
Balev
, at para. 67. As I will later explain, this date also determines
    whether the Article 12 settled in exception can apply.

[25]

Identifying the date of alleged wrongful
    removal or retention does not imply a finding that there has been a wrongful
    removal or retention. At this first step of the analysis, the wrongfulness of
    the removal or retention is merely an allegation. All that is required at this
    step is to fix a date to conduct the habitual residence analysis. Contrary to
    the appellants arguments, it was perfectly consistent for an application judge
    to find a date of alleged wrongful retention at this first step, and then to
    ultimately find that there was no shared parental intention and that the
    respondents retention of the children in Ontario was not wrongful.

(ii)

Step Two: Determining Habitual Residence

[26]

The second step of the habitual residence
    analysis requires the court to determine where the child was habitually resident
    immediately before the date of the alleged wrongful removal or retention. As I
    will explain, in
Balev
the Supreme Court changed the approach that
    Ontario courts had previously employed to determine habitual residence.

[27]

Prior to the Supreme Courts decision in
Balev
,
    Ontario courts applied a parental intention approach to habitual residence. As
    this court explained in
Korutowska-Wooff v. Wooff
(2004), 242 D.L.R.
    (4th) 385 (Ont. C.A.), at para. 8, leave to appeal refused, [2005] S.C.C.A. No.
    132, a childs habitual residence was tied to that of the childs custodians
    and was determined by the custodians settled intention to stay in a place
    for a particular purpose. Under this approach, neither parent could
    unilaterally change a childs habitual residence without the others consent.
    Likewise, time-limited travel that both parents agreed to could not change the
    childs habitual residence:
Balev. v. Baggott
, 2016 ONCA 680, 133 O.R.
    (3d) 735, at paras. 39-40, 42, revd 2018 SCC 16, [2018] 1 S.C.R. 398.

[28]

In
Balev
, the majority of the Supreme
    Court rejected both the parental intention approach and an alternative
    child-centred approach. The majority recharacterized parental intention as one
    relevant factor among many, instead of the controlling factor, and warned
    against over-reliance on this factor: at paras. 45 and 63. It specifically
    rejected the rules this court had adopted that one parents unilateral actions
    are incapable of changing a childs habitual residence and that a childs
    habitual residence could not change in the case of time-limited travel that
    both parents agreed to: at paras. 46, 72-73. However, the court also rejected
    the child-centred approach that the OCL had proposed in its submissions in
Balev
.
    Under this child-centred approach, parental intention would be irrelevant and
    the sole focus would be the childs acclimatization in a given country:
Balev
,
    at para. 41.

[29]

Instead of the parental intention or
    child-centred approaches, the court adopted a hybrid model that combined
    parental intention and the circumstances of the children. The court stressed
    that under the hybrid approach, the application judge must look at all
    relevant considerations, including both parental intention and the
    circumstances of the children: at paras. 4, 42. The court stated that the
    hybrid approach would best fulfill the object of prompt return that animates
    the
Hague Convention
: at para. 59. Unlike both the parental intention
    and child-centred approaches, the hybrid approach would allow the court to
    consider all relevant factors without relying on formulaic approaches: at para.
    65.

[30]

The aim of the hybrid approach is to determine
    the focal point of the childs life  the family and social environment in
    which its life has developed  immediately prior to the removal or retention:
    at para. 43. To determine the focal point of the childs life, the majority required
    judges to consider the following three kinds of links and circumstances:

1)

The childs links to and circumstances in country A;

2)

The circumstances of the childs move from country A to country B;
    and,

3)

The childs links to and circumstances in country B.

[31]

The majority went on to outline a number of
    relevant factors courts may consider in assessing these three kinds of links
    and circumstances. Considerations include the childs nationality and the
    duration, regularity, conditions and reasons for the [childs] stay, along
    with the circumstances of the parents and parental intention: at paras. 44-45.
    However, the list of relevant factors is not closed and the application judge
    must consider the entirety of the childs situation: at para. 47. The child
    is the focus of the analysis and parental intention is only relevant as a tool
    to assess the childs connections to a given country: at para. 68.

[32]

Certain factors may be more relevant where the
    child is an infant or is very young. Where a child is an infant, the childs
    environment is essentially a family environment, determined by the reference
    person(s) with whom the child lives, by whom the child is in fact looked after
    and taken care of:
Balev
, at para. 44. Accordingly, the circumstances
    of the parents, including parental intention, may be especially important in
    the cases of infants or young children: para. 45.

[33]

Balev
establishes
    that habitual residence is a question of fact or mixed fact and law and that an
    application judges determination of habitual residence is subject to
    deference. The court specifically stressed that the hybrid approach is
    fact-bound, practical, and unencumbered with rigid rules, formulas, or
    presumptions: at para. 47. The application judge must consider the entirety of
    the childs situation and no one factor necessarily dominates the analysis: at
    paras. 44, 47.

(b)

Application of Exceptions

[34]

If the court determines that the child was
    habitually resident in the country of the applicant at the time of the alleged
    wrongful removal or retention, Article 12 of the
Hague Convention
provides that the court shall order the return of the child. However,
    Articles 12, 13, and 20 also outline five exceptions to this obligation to return
    the child. These exceptions come into play only after habitual residence is
    determined: see
Balev
, at para. 66. In
Balev
, at para. 29,
    the Supreme Court summarized these exceptions as follows:

1)

The parent seeking return was not exercising custody or consented to
    the removal or retention (Article 13(a));

2)

There is grave risk that return would expose the child to physical
    or psychological harm or place the child in an intolerable situation (Article
    13(b));

3)

The child of sufficient age and maturity objects to being returned (Article
    13(2));
[1]

4)

The return of the child would not be permitted by fundamental human
    rights and fundamental freedoms of the requested state (Article 20); and,

5)

The application was brought one year or more from the date of
    wrongful removal or retention, and the judge determines the child is settled in
    the new environment (Article 12).

[35]

Because the arguments in this case touched on
    the third and fifth exceptions, namely the childs objections and the settled
    in exception, I will provide further comment on these two exceptions.

(i)

The Settled In Exception

[36]

First, Article 12 provides the settled in
    exception. As the Supreme Court held in
Balev
, at para. 66, its
    function is to provide a limited exception to the courts obligation to
    return wrongfully removed or retained children to their habitual residences.
    The courts discretion to refuse return under the settled in exception under
    Article 12 becomes available if the following two conditions are met:

1) The
    applicant has commenced return proceedings one year or more following the date
    of the wrongful removal or retention; and,

2) It is demonstrated
    that the child is now settled in its new environment.

[37]

Under the settled in exception, the court must
    assess the childrens connection to the country they are in at the time of the
    hearing of the application, not immediately before the date of wrongful removal
    or retention:
Balev
, at para. 67. This difference in timing can be
    significant. The settled in exception thus accounts for the possibility that
    a child will develop closer ties to the jurisdiction in which the child has
    been wrongfully removed or retained in the period of time that follows the date
    of the wrongful removal or retention:
Balev
, at para. 67. As the
    Supreme Court stated in
Balev
, at para. 66, It may be that on the
    hybrid approach habitual residence favours return of the child, but that the
    one-year period and settling-in indicate that the child should not be uprooted
    and returned to his or her place of habitual residence.

(ii)

The Objections Exception

[38]

Second, Article 13(2) gives the court the
    discretion to refuse to order the return of a child of sufficient age and
    maturity who objects to that return. As the Supreme Court held in
Balev
,
    at para. 77, the party opposing return must meet a two-part test to be able to
    invoke the courts discretion to refuse return:

1)

The child has reached an appropriate age and degree of maturity at
    which the childs views can be taken into account; and,

2)

The child objects to return.

Both of these elements are questions
    of fact:
Balev
, at para. 78.

[39]

Even if the party opposing return can prove both
    of these elements, the court is not required to refuse to order the childs
    return. Instead, the court has a discretion to do so. In
Balev
, at
    para. 81, the Supreme Court stated that the court should consider the following
    factors adopted from the House of Lords decision
In re M (Abduction:
    Rights of Custody)
, [2007] UKHL 55, [2008] 1 A.C. 1288, at para. 46, when
    deciding whether to exercise its discretion:

1)

The nature and strength of the childs objections;

2)

The extent to which the objections are authentically the childs own
    or the product of the influence of the abducting parent;

3)

The extent to which the objections coincide or are at odds with
    other considerations relevant to the childs welfare; and,

4)

General
Hague Convention
considerations.

The general
Hague Convention
considerations include the overarching objectives of the
Hague Convention
,
    namely to secure the prompt return of wrongfully removed or retained children
    to their country of habitual residence and to ensure that custody rights are
    respected, as well as the goal of deterring child abduction:
Balev
, at
    paras. 24, 26;
In re M
, at para. 42.

(c)

Summary of the Governing Analytical Framework
    for
Hague Convention
Applications

[40]

For ease of reference, I will summarize the
    governing analytical framework for
Hague Convention
applications
    below.

Stage One: Habitual Residence

1)

On what date was the child allegedly wrongfully removed or retained?

2)

Immediately before the date of the alleged wrongful removal or
    retention, in which jurisdiction was the child habitually resident? In
    determining habitual residence, the court should take the following approach:

a)

The courts task is to determine the focal point of the childs
    life, namely the family and social environment in which its life has developed,
    immediately prior to the removal or retention.

b)

To determine the focal point of the childs life, the court must
    consider the following three kinds of links and circumstances:

i)

The childs links to and circumstances in
    country A;

ii)

The circumstances of the childs move from country A to country B;
    and

iii)

The childs links to and circumstances in country B.

c)

In assessing these three kinds of links and circumstances, the court
    should consider the entirety of the circumstances, including, but not
    restricted to, the following factors:

i)

The childs nationality;

ii)

The duration, regularity, conditions and reasons for the childs
    stay in the country the child is presently in; and

iii)

The circumstances of the childs parents, including parental
    intention.

End of Stage One: Two Outcomes

1)

If the court finds that the child was habitually resident in the
    country in which the party opposing return resided immediately before the
    alleged wrongful removal or retention, then the
Hague Convention
does
    not apply and the court should dismiss the application.

2)

If the court finds that the child was habitually resident in the
    country of the applicant immediately before the wrongful removal or retention, then
    the
Hague Convention
applies and the court should proceed to stage two
    of the analysis.

Stage Two: Exceptions

At this
    stage, the court shall order the return of the children unless it determines
    that one of the following exceptions applies:

1)

The parent seeking return was not exercising custody or consented to
    the removal or retention (Article 13(a));

2)

There is grave risk that return would expose the child to physical
    or psychological harm or place the child in an intolerable situation (Article
    13(b));

3)

The child of sufficient age and maturity objects to being returned
    (Article 13(2));

a) Has the
    party opposing return met the threshold to invoke the courts discretion to
    refuse return?

i)

Has the child reached an appropriate age and
    degree of maturity at which the childs views can be taken into account; and

ii)

Does the child object to return?

b) Should
    the court exercise its discretion to refuse to return the child? In considering
    whether to exercise its discretion to refuse return, the court should consider:

i)

The nature and strength of the childs
    objections;

ii)

The extent to which the objections are authentically the childs own
    or the product of the influence of the abducting parent;

iii)

The extent to which the objections coincide or are at odds with
    other considerations relevant to the childs welfare; and

iv)

General
Hague Convention
considerations.

4)

The return of the child would not be permitted by fundamental human
    rights and fundamental freedoms of the requested state (Article 20); or

5)

The application was brought one year or more from the date of
    wrongful removal or retention, and the judge determines the child is settled in
    the new environment (Article 12).

B.

Treatment of specific grounds of appeal

(1)

Were the application judges reasons inadequate?

[41]

The appellant submits that the application
    judges reasons are inadequate because she reached bald conclusions without
    grounding them in the evidence. In particular, the appellant submits that the
    application judge failed to explain the evidence and legal principles she
    relied on to make her findings on both parental intention and habitual
    residence.

[42]

I reject this argument. Reasons are adequate if
    they allow the parties, the general public, and the reviewing court to know
    whether the judge properly considered the applicable law and evidence:
Lawson
    v. Lawson
(2006), 81 O.R. (3d) 321 (C.A.), at para. 9. These reasons meet
    that standard.

[43]

The application judge set out the law and the
    analytical framework from
Balev
. She surveyed and analyzed the
    relevant evidence before she made the findings on both parental intention and
    habitual residence that the appellant objects to. Read in context, her reasons
    explain why she made those findings and ground those findings in the evidence.
    For instance, she rooted her finding on parental intention in numerous pieces
    of evidence, such as the fact that the parties brought their most important
    possessions to Ontario. Likewise, she explained her finding on habitual
    residence by considering factors such as the childrens integration into Ontario
    schools, their relationship with their extended maternal family in Ontario, and
    the three elder childrens preference to remain in Ontario.

(2)

Did the application judge misapply the hybrid
    model from
Balev
?

[44]

The appellant argues that the application judge applied
    the wrong legal test.  He submits that while the application judge stated that
    she was applying the hybrid model from
Balev
, she actually applied the
    child-centred model that
Balev
rejected. He also submits that the
    application judge failed to address the childrens links and circumstances in
    Germany and Ontario and the circumstances of the childrens move from Germany
    to Ontario as
Balev
requires.

[45]

I also reject this argument. As the appellant
    acknowledges, the application judge correctly set out the law and analytical
    framework from
Balev
. She then applied the hybrid model and considered
    the very factors that the appellant alleges she failed to consider. At paras.
    91-92 of her reasons, the application judge specifically compared the
    childrens life in Germany to their life in Ontario and found that their family
    and social environments were similar in both countries. She also considered the
    circumstances of the childrens move from Germany to Ontario. Indeed, she
    analyzed the reasons for the move and concluded that she could not find a
    shared parental intention that the move would be for a time-limited stay with a
    return date.

(3)

Did the application judge err in determining the
    childrens habitual residence?

[46]

The appellants third argument is that the application
    judge made factual and legal errors in determining that the children were
    habitually resident in Ontario. He alleges the application judge made numerous
    factual errors. He also submits that the application judge made two legal
    errors in which she conflated the habitual residence stage of analysis and the
    application of the exceptions to return.  According to the appellant, the
    application judge first improperly considered evidence that the children were
    settling-in to Ontario following the date of the alleged wrongful retention.
    Second, she erred by treating the childrens views and preferences as
    objections to their return under Article 13(2) of the
Hague Convention
.

[47]

I also reject this argument. The application
    judge did not commit the factual errors the appellant alleges. Nor did the
    application judge err in law by conflating the circumstances of the children
    with the settling-in of the children. Finally, she legitimately considered the
    childrens views and preferences for purposes relevant to the test for habitual
    residence.

(a)

Alleged Factual Errors

[48]

The appellant alleges a variety of factual
    errors. These can be grouped under the following five categories:

1.

The application judge erred in determining the date of the alleged
    wrongful retention;

2.

The application judge erred in finding that there was no shared
    parental intention that the move to Ontario was time-limited and had an expiry
    date;

3.

The application judge erred in analyzing the views and preferences
    of the children;

4.

The application judge erred by failing to resolve the forum shopping
    issue; and

5.

The application judge failed to appreciate the significance of the
    custody rights the appellant possessed over the children.

[49]

I do not accept these arguments.

[50]

First, the application judges finding that the
    date of the alleged wrongful retention was immediately prior to September 2018
    was reasonable. The appellant himself stated in his
Hague Convention
application that he consented to the children staying in Canada until the start
    of the 2018-2019 school year.

[51]

Second, the application judge did not commit a
    palpable and overriding error in finding that there was no shared parental
    intention. There was abundant evidence that the application judge considered which
    supported her finding on this issue. For instance, the parents brought most of
    their belongings and important possessions to Ontario and spent significant
    sums on home renovations in Ontario. The appellant suggests that the
    application judge should have placed more weight on other pieces of evidence,
    including pre-separation text messages and the immigration status of the
    children and the appellant. Yet it is not the role of this court to
    second-guess the weight the application judge gave to the pieces of the evidence
    which were before her:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235, at para. 23.

[52]

Third, the application judge did not make any
    palpable and overriding error in her analysis of the views and preferences of
    the children. The appellant submits that the application judge failed to
    consider the influence of the respondent and her family on the children as well
    as the reason for the changes in the childrens views and preferences. However,
    it was open to the application judge to assign the weight she deemed
    appropriate to the views and preferences of the children despite the
    possibility that their views may have been influenced. I agree with the
    appellant that the views and preferences of the children are not determinative,
    but there is no indication that the application judge considered them as
    determinative. She also considered the childrens family and social environment
    and their experiences in both Canada and Germany to draw a conclusion on
    habitual residence.

[53]

Nor is there any merit to the fourth and fifth
    alleged factual errors. Both parties accused each other of forum shopping. This
    issue was peripheral to the main issues before the application judge and she
    was not required to resolve it as it was not material to her ultimate
    determination: see
Wasinski v. Norampac Inc.
, 2016 ONCA 309, 31
    C.C.E.L. (4th) 1, at para. 31. As for the appellants custody rights over the
    children, the application judge and the parties accepted that the appellant and
    respondent had joint custody rights over the children. Nothing turned on this
    issue.

(b)

Alleged Legal Errors

(i)

Alleged Settling-In Error

[54]

The appellant submits that the application judge
    erred in law by considering the settling-in of the children in order to determine
    their habitual residence. He submits that the court cannot consider the childrens
    settled in environment in determining habitual residence when less than one
    year has passed from the date of the wrongful removal or retention.

[55]

I do not accept this argument.

[56]

As I have explained, the settled in exception applies
    if the applicant commences a return proceeding more than one year after the
    date of the wrongful removal or retention and it is demonstrated that the child
    is now settled in its new environment.

[57]

In
Balev
, the dissent argued, at para.
    121, that it would be improper to consider evidence that speaks to the
    strength or quality of the childs connections to each jurisdiction when
    determining habitual residence if the evidence of shared parental intent was
    clear. In the dissents view, considering the strength or quality of the
    childs connection to each jurisdiction was only permitted under the settled
    in exception, which follows a determination of habitual residence.

[58]

The majority disagreed. As the majority
    explained at para. 66 of
Balev
, the majority saw no conflict between
    the hybrid approach and the settled in exception. For the majority, it was
    conceivable under the hybrid approach that evidence of settling-in could
    indicate that the child should not be returned even if habitual residence
    favoured the return of the child. Likewise, at para. 67, the majority
    emphasized that habitual residence and the settled in exception each addresses
    a different point in time. For habitual residence, the crucial moment is
    immediately prior to the date of the alleged wrongful removal or retention. In
    contrast, the settled in exception considers the links a child develops to a
    country following the date of the wrongful removal or retention.

[59]

It follows that the appellants argument must be
    rejected. In considering the strength and quality of the childrens connections
    to Ontario, the application judge did not conflate habitual residence with the
    settled in exception. Instead, she did what
Balev
required her to
    do, namely to consider all of the childrens relevant links to and circumstances
    in Ontario. The application judge also repeatedly made clear that she was
    analyzing the childrens links to and circumstances in Ontario immediately
    prior to the September 2018 date of alleged wrongful retention, and not
    subsequent to that date.

(ii)

Alleged Error in Considering Views and
    Preferences of the Children

[60]

The appellant also submits that the application
    judge erred in law by treating the childrens views and preferences as
    objections to their return under Article 13(2) of the
Hague Convention
.
    The application judge thus conflated the determination of habitual residence
    with the Article 13(2) exception for objections. Yet this exception is only
    engaged after the court determines habitual residence.

[61]

Again, I reject this argument. The appellant is
    correct to stress the important distinction between the determination of
    habitual residence and the Article 13(2) exception. However, he has not shown
    that the application judge made the error he alleges. The application judge
    legitimately considered evidence of the childrens views and preferences for
    purposes relevant to the test for habitual residence.

[62]

It is proper for an application judge to
    consider the childs views and preferences as a relevant factor in determining
    habitual residence.
Balev
requires the application judge to analyze
    all relevant links and circumstances that connect a child to each country: at
    para. 43. A childs views and preferences may be one such relevant link or
    circumstance.
Balev
teaches that the list of potentially relevant
    factors is not a closed list: at para. 47. Accordingly, the fact that the
    majority did not specifically enumerate a childs views and preferences as a
    relevant factor in
Balev
does not bar the application judge from
    considering those views and preferences.

[63]

A childs views and preferences may be relevant
    to the concerns that animate the hybrid approach. As
Balev
teaches, at
    para. 43, the focus of the hybrid approach is the childs links to and
    circumstances in the two countries and the circumstances of the move between
    those two countries. A childs views and preferences may shed light on their
    links to a particular country or their circumstances in that country. For
    instance, if a child wishes to remain in country A because the child has made
    friends and social connections in country A, the childs preference to remain
    in that country provides evidence of the strength of the childs friendships
    and social connections, a relevant link to country A.

[64]

However, courts should not consider views and
    preferences at the habitual residence stage in a manner that would stray into
    the Article 13(2) objections exception or assessing the best interests of the
    child. As stated previously, a return order is not a custody determination and
    the application judge does not have jurisdiction to consider the best interests
    of the child as a judge would at a custody hearing:
Thomson v. Thomson
,
    [1994] 3 S.C.R. 551, at p. 578. Likewise, the Article 13(2) objections
    exception, not the habitual residence stage, is designed to allow the court to
    give the child a say in where the child lives:
Balev
, at para. 34.

[65]

In this regard, I would note that childrens
    views and preferences may sometimes be motivated by factors that are not tied
    to the criteria for determining habitual residence but are more relevant to
    Article 13(2) objections or the ultimate determination of access and custody. A
    childs views and preferences may have little to do with their links to and
    circumstances in a given country and may exclusively concern the childs
    perceived interests. For instance, a child may wish to remain in a given
    country because it offers greater economic or educational opportunities when
    the child reaches the age of maturity. A court could take such a wish into
    account when considering a childs objection to return under Article 13(2).
    Likewise, this wish would be relevant to a court charged with determining the
    best interests of the child to make a custody or access order. Yet a childs
    belief that a given country offers greater economic or educational
    opportunities in the future offers little assistance to the court in
    determining whether that country is the focal point of the childs life
    immediately before the date of the alleged wrongful removal or retention:
Balev
,
    at para. 43.

[66]

In this case, it was open to the application
    judge to consider the childrens views and preferences as evidence of their
    circumstances in and links to Ontario. It is true that some of the reasons two
    of the children gave for wishing to remain in Ontario pertained more to best
    interests of the child or Article 13(2) objections than to the concerns that
    animate the hybrid approach to habitual residence. For instance, N. and I.
    indicated that they were doing better in school in Ontario than in Germany, and
    N. expressed his view that he would have a better chance of attending
    university in Ontario than in Germany. Yet the three older children also gave
    reasons for wishing to stay in Ontario that were relevant to their links to
    Ontario. All three referred to their ties to their maternal extended family as
    a reason, and I. and D. referenced the friends they had made in Ontario as
    well.

[67]

When the application judges reasons are read in
    context, it is clear that she considered the childrens views and preferences
    as evidence of their circumstances in and links to Ontario, not as Article
    13(2) objections. The application judge specifically instructed herself that
    the issue before her was not the best interests of the children. Before
    referring to the childrens views and preferences, the application judge
    emphasized their close relationship with their maternal extended family in
    Canada. This was one of the principal reasons the children gave for wishing to
    remain in Canada. The application judge did not highlight N.s view that he
    would have a better chance of attending university in Ontario than in Germany.
    Accordingly, the most reasonable reading of the application judges reasons is
    that she considered the childrens views and preferences as evidence of the childrens
    circumstances in Ontario and the strength of the links connecting them to
    Ontario.

(4)

Did the application judge err by permitting OCL
    counsel to give evidence and advance legal argument from the counsel table?

[68]

The appellant further argues that the application
    judge erred by permitting OCL counsel to exceed the parameters of her
    court-ordered role. The appellant points to two errors. First, he submits that the
    application judge erred by permitting OCL counsel to give evidence and advance
    legal argument on behalf of the children at the application hearing. Second, he
    maintains that the application judge erred by permitting OCL counsel to give
    evidence on the consistency, clarity, and independence of the childrens views
    and preferences when she was not qualified as an expert.

(a)

Role of OCL Counsel

[69]

I reject the appellants argument that the OCL counsel
    exceeded the parameters of her role.  The appellants submission misunderstands
    the role of OCL counsel. OCL counsel is not a mere cypher for the childrens
    views or a passive participant in the proceedings. As this court recently
    confirmed in
Ontario (Childrens Lawyer) v. Ontario (Information and
    Privacy Commissioner)
, 2018 ONCA 559, 141 O.R. (3d) 481 (
OCL v. IPC
),
    at paras. 69, 98-100, 114, leave to appeal refused, [2018] S.C.C.A. No. 360, OCL
    counsel acts as the legal representative of the OCLs child clients and owes them
    fiduciary duties of loyalty, good faith, and attention to their interests. It
    follows, as this court established in
Strobridge v. Strobridge
, that
    OCL counsel may call evidence and make submissions on behalf of the children:
    (1994), 18 O.R. (3d) 753 (C.A.), at p. 764.

[70]

That is what occurred in this case. Grace J.s
    order gave OCL counsel full power to act for thechild(ren), including the
    rights to call evidence and make legal submissions. Campbell J.s subsequent
    endorsement did not purport to rescind Grace J.s order. Instead, Campbell J.
    merely specified the mode of presentation of the childrens evidence, namely
    that OCL counsel would present this evidence from the counsel table on consent.
    This court approved of this mode of presentation of the evidence in
Strobridge
    v. Strobridge
at p. 764.

(b)

OCL Counsel Did Not Give Opinion Evidence

[71]

I also reject the second error the appellant
    alleges. While it would have been improper for OCL counsel to give opinion
    evidence, she did not do so, and the application judge did not treat her
    evidence or submissions as opinion evidence.

[72]

I agree with the appellant that it would have
    been improper if OCL counsel had overstepped her role by giving opinion
    evidence. OCL counsel was a lawyer, not a clinician. She was not qualified as
    an expert. Nor did any expert clinician accompany her when she met with the
    children. In
RM v. JS
, 2013 ABCA 441, 369 D.L.R. (4th) 421, the issue
    was whether it was proper for counsel for the child in a
Hague Convention
case to inform the court that the childs views seemed independent. The Alberta
    Court of Appeal held that this was improper. Counsel could not give opinion
    evidence about the independence of the childs views because counsel was not
    qualified as an expert, counsel lacked the relevant expertise, and counsels
    non-expert opinion evidence would not be of use to the court: at para. 26. The
    same was true of OCL counsel in this case.

[73]

The Alberta Court of Appeals holding in
RM
that it is improper for counsel for the child to proffer opinion evidence is
    consistent with this courts decisions in
Strobridge
and
Ojeikere
    v. Ojeikere
, 2018 ONCA 372, 140 O.R. (3d) 561. In
Strobridge
, at
    p. 764, this court held that while OCL counsel can make submissions on the
    evidence, counsel is not entitled to express his or her personal opinion on
    any issue, including the childrens best interests. Likewise, in
Ojeikere
,
    at para. 50, this court discounted the opinion evidence of an OCL clinician in
    relation to children she had interviewed because the OCL clinician was not
    qualified as an expert. This court cited approvingly
Childrens Aid Society
    of Toronto v. C.J.W.
, 2017 ONCJ 212, at paras. 21-22. In that case, the
    court emphasized that an individual retained to advise the court of the childs
    views and preferences, but not qualified as an expert, may only advise the
    court of both what the child said and the individuals direct observations of
    the child. This individual may not offer an interpretation of what the childs
    statements mean.

[74]

However, I also agree with the OCL that OCL
    counsel had a duty to ascertain the consistency, clarity, and independence of
    the childrens views and preferences. OCL counsel must ascertain the
    consistency, clarity, and independence of a child clients articulated views in
    order to determine whether to take a position that mirrors those views: see
Jewish
    Family and Child Services of Greater Toronto v. J.K.
, 2014 ONCJ 792, 74
    R.F.L. (7th) 487, at para. 29. This court recognized the existence of this duty
    in
OCL v. IPC
: at paras. 69 and 80.  At para. 80, Benotto J.A. adopted
    the following passage from the reasons of Mesbur J. in
Catholic Childrens
    Aid Society of Toronto v. S.S.B.
, 2013 ONSC 4560, 35 R.F.L. (7th) 178, at
    para. 21:

When [the Childrens Lawyer] takes a position
    on behalf of a child, childs counsel will ascertain the childs views and
    preferences. In doing so, it will consider the independence, strength and
    consistency of the child's views and preferences; the circumstances surrounding
    those views and preferences, and all other relevant evidence about the childs
    interests.

[75]

Furthermore, as I have already explained, OCL
    counsel has the right to make submissions on behalf of the children. This of
    course includes the right to make submissions that the childrens views and
    preferences are clear, consistent, and independent.

[76]

The question is thus whether OCL counsel stayed
    within the bounds of assessing the consistency, clarity, and independence of
    the childrens views to determine what position to take and then make
    submissions to the court on those factors, or whether she stepped into the
    realm of giving opinion evidence. As this court held in
Strobridge
, at
    p. 764, while OCL counsel is entitled tomake submissions on all the
    evidencecounsel is not entitled to express his or her personal opinion on any
    issue.

[77]

I reject the appellants submission that OCL
    counsel purported to give opinion evidence in the letter she provided
    summarizing the childrens views and preferences. At the application hearing,
    the appellants counsel acknowledged that it was proper for OCL counsel to set
    out her assessment of the clarity, consistency, and independence of the
    childrens views in the letter. That assessment was relevant to OCL counsels
    ability to take a position on behalf of the children. As the appellants
    counsel stated in relation to the letter:

Im not questioning the issue that [OCL counsel]
    found that the older three children had a level of maturity to, to be able to
    express their views and preferences.  [T]hat was her jobWhatever is in that,
    that letter is accepted by the [appellant].

[78]

I agree. The letter from OCL counsel was not
    intended for use as opinion evidence. Instead, the letter clearly indicated
    that the purpose of the statements about the clarity, consistency, and
    independence of the childrens views was to inform OCL counsels own assessment
    of what position to take on behalf of the children.

[79]

I also reject the appellants argument that OCL
    counsels use of the phrase I found that in the letter indicated that OCL
    counsel was giving opinion evidence. The use of I found that at one place in
    the letter was perhaps an unfortunate choice of words. Yet it was clear from
    the context that OCL counsel was not purporting to offer opinion evidence but
    instead simply setting out the factors that informed her assessment of what
    position to take on behalf of the children.

[80]

The appellant further submits that OCL counsel
    crossed the line and gave inadmissible opinion evidence in her submissions at
    the application hearing. He argues that OCL counsel framed her submissions as
    opinion evidence.

[81]

I reject this submission. I have reviewed the
    transcript. OCL counsel did submit that the childrens views were clear,
    consistent, and independent. She was entitled to do so. However, she did not
    cross the line into giving opinion evidence. She prefaced her references to
    clarity, consistency, and independence with the phrase I submit. She was
    entitled to refer to the evidence of the childrens views and preferences in
    support of her submissions that the children expressed their views clearly,
    consistently, and independently. Furthermore, in her reply submissions, OCL
    counsel clearly indicated that her remarks on the clarity, consistency, and
    independence of the childrens views were intended as submissions.

[82]

In any case, even if I had concluded that OCL
    counsel crossed the line into giving opinion evidence, I am not convinced that
    any prejudice to the appellant would have flowed from this. The application
    judge did not analyze the clarity, consistency, and independence of the
    childrens views in any detail, and there is no indication in her reasons that
    she improperly relied on the comments of OCL counsel as opinion evidence.

(5)

Did the application judge err by permitting the
    respondents counsel to give evidence that was not in the record?

[83]

The appellants final submission is that the
    application judge erred by permitting the respondents counsel to advance
    statements of fact regarding the parties and their children that were not in
    the record. The appellant argues that this produced an injustice.

[84]

I reject this argument. I agree with the OCL
    that this issue has no bearing on the application judges decision. The
    application judge did not expressly rely on any of the evidence that the
    respondents counsel allegedly tendered. The appellant is unable to point to
    any connection between such evidence and the application judges decision.
    Accordingly, there is no prejudice to the appellant from any error.

VII.    DISPOSITION

[85]

Accordingly, I would dismiss the appeal. The
    parties agree that this is not a case for costs.

Released: MT AUG 30 2019

M. Tulloch J.A.

I agree. L.B. Roberts J.A.

I agree. B.W. Miller J.A.





[1]
As the Supreme Court explained in
Balev
, at para. 5, fn. 1,
    Although this provision is not numbered in the
Hague Convention
(unlike
    Article 13(a) and Article 13(b)), it is generally referred to as Article 13(2).


