Two Children Ordered Back To Father’s Custody In Germany

When a custody battle rages across international lines, the situation often morphs into a complicated legal mess. That’s what one separated couple found as their dispute climbed the judicial ladder in Ontario, forcing lawyers and judges to wade through the interpretative complexities of a multi-national treaty called the Hague Convention.

What Is The Hague Convention?

It’s an agreement between 90+ countries to expedite the return of internationally abducted children under the age of 16. Such children are either removed from or are being kept away their country of habitual residence.

‘Habitual Place Of Residence’

At the core of last week’s decision in Balev v Baggott was the debate over the two children’s ‘habitual’ country of residence – either Germany or Canada.

The parents – both Canadian citizens – had met in Toronto and married in 2002. A year later, they moved to Toronto, bore the two children and raised them in Germany. By 2011, the couple separated and interim custody was awarded to the father, Balev.

In 2013, Balev signed over temporary custody to Baggott, in mutual agreement that she would take the children to Canada for schooling. All in the family – including the children – believed that the move would be temporary. Leaving most of their belongings behind in Germany, mother and children headed for Canada.

By the following year, Balev had a change of heart and demanded the children back. Baggott refuse and took the matter to court.

Three years and a few court cases later, Ontario’s Court of Appeal has decided that the children – now aged 14 and 11 – must return to their father’s custody in Germany. The father has been ordered to provide housing there for the children as well as the mother.

Although acknowledging the mother’s concerns and the likelihood that the uprooting would be “difficult” for the children, the judge found that Baggott had contravened the Hague Convention by detaining the German-born, German-raised children in Canada.

He further pointed out that the case “raises legal issues that transcend their interests and that affect the interests of countless other children and their parents.”

Baggott subsequently described the Hague Convention as a “means of legislated kidnapping," and intends to take her case to the Supreme Court.

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