TORONTO — Two Canadian children at the centre of a protracted custody dispute must return to Germany where their father lives over their objections and against the wishes of their mother, Ontario's top court ruled Tuesday.
In addition, the court ruled, the father will have to provide suitable housing for the mother and children in the European country.
"Although this case involves the interests and needs of these two young children, it raises legal issues that transcend their interests and that affect the interests of countless other children and their parents," the Appeal Court ruled.
The appeal involving John Balev and his wife Catharine-Rose Baggott turned on interpretation of rules on international child abductions known as the Hague Convention.
The couple, Canadian citizens who married in Toronto in 2000, moved to Germany the following year. The children, born in Germany in 2002 and 2005 and mostly raised there, are sole Canadian citizens.
Balev and Baggott separated in 2011 and the father was given interim custody, according to the Court of Appeal. In April 2013, however, they agreed Baggott would take the children to Canada to attend school, and Balev signed a letter transferring custody temporarily to her. The mother and children left most of their belongings in Germany when they came to Canada.
A year later, Balev began trying to get the children back. The mother refused.
After legal wrangling and delays in both Canada and Germany, the case proceeded in Ontario.
Initially, a Superior Court justice in St. Catharines, Ont., ruled the children's habitual residence was in Germany — a fact that did not change during the time they spent in Canada — and ordered their return.
On appeal, however, Divisional Court reversed that decision after finding their usual home had changed before their mother refused to allow them to go back to Germany and the Hague Convention did not apply.
"I have considerable sympathy for the mother, who obviously feels strongly that it is in her children's best interests to remain in Canada," Justice Robert Sharpe wrote for the Appeal Court. "I also recognize that the children have now been in Ontario for more than three years, and that moving them back to Germany is likely to be difficult."
Nevertheless, the Court of Appeal ruled the children must return to Germany.
In coming to its decision, the Appeal Court found the German-born children were normally residents in Germany and the mother had violated the Hague Convention by moving them.
The court also agreed the parents intended the Canadian visit to be temporary — and the children believed it would be — and Baggott breached Balev's custody rights by keeping them in Ontario against his wishes.
"The Divisional Court's decision would, if upheld, undermine the purpose and proper operation of the Hague Convention," the Appeal Court decided.
The court also found the children's objections to returning to Germany to be insubstantial. They had complained about too much homework there and losing friends in Ontario.
In an interview late Tuesday, Baggott said the Appeal Court ignored several salient facts and said she would appeal.
"I have to take this to the Supreme Court because the Hague Convention has become a means of legislated kidnapping," Baggot said.
