, the Court of Appeal noted that looking only at where the warring parents had intended to live, as used to be the case, was no longer valid.
Under the Convention on the Civil Aspects of International Child Abduction -- widely known as the Hague Convention -- determining "habitual residence" determines whether a child has been wrongfully taken to, or kept in, a particular jurisdiction. That left it to the courts to decide whether the Ludwig children, aged 9 to 15, belonged in Ontario or Germany.
The couple split in March last year and Nils Ludwig made plans to leave for Europe. A few months later, his wife said she wanted to stay in Ontario, filed for divorce, and sought custody of the children. He applied under the convention to take the children to Germany. Three of them wanted to stay in Canada; one had no preference.
Previously, Ontario courts tied a child's habitual residence to that of the parents, which was decided by their "settled intention" to stay in a place for a particular purpose. Under that approach, neither parent could unilaterally change a child's habitual residence without the other's consent. The Balev decision changed that approach.
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