J.N.C. v A.G.H, 2024 BCSC 1783.

Whether the child’s habitual residence is Mexico or Canada.

If the child’s habitual residence is Mexico, should the court decline to return the child there based on risk of harm.

Does the Balev test established by the SCC adequately consider the indigeneity of a child when considering their habitual residence?

[133] In determining whether there has been a wrongful removal or retention of a child under Article 3 of the Hague Convention, the court must first determine where the child was “habitually resident” immediately before the removal or retention. If the child’s habitual residence is not in the state of the parent seeking return (here Mexico), then the Hague Convention does not apply: Balev at para. 36; Gill at para. 21.

[181] In the years following its formal endorsement, the government of Canada started to reflect its commitment to implementing UNDRIP in federal legislation. For example, An Act respecting First Nations, Inuit and Metis children, youth and families, S.C. 2019, c. 24 [FNIM Act], which was enacted on June 21, 2019, notes that the government of Canada “is committed to implementing [UNDRIP]” (preamble), and that one of the purposes of the FNIM Act is to contribute to the implementation of UNDRIP (s. 8).

[209] As well, the Canadian jurisprudence on habitual residence recognizes that courts are to consider the “entirety” of the child’s circumstances, that the list of factors is not closed, and that “no single factor” is to dominate the analysis (Balev at paras. 44 and 47). In my view, there is already ample space within the Balev/Ludwig framework for the Court to consider A’s indigeneity and her Indigenous Connections when considering her habitual residence, without reformulating the test.

[229] I do agree that Canada’s history of colonialism and its effects, including displacement of Indigenous peoples from their lands and the associated loss of culture, traditions and community can offer context for the court’s analysis in a Hague Convention matter in determining an Indigenous child’s habitual residence pursuant to the test set out in Balev/Ludwig. The same context can be useful in the analysis of whether there is grave risk of harm in returning a particular Indigenous child. However, while these factors can offer context for each of these steps of the analysis, they ought not to dictate or determine the outcome. The analysis is fact-specific based on the individual child, whether or not the child is Indigenous.

[230] It must also be noted that the cases relied on by counsel all deal with entirely different matters than the case at hand. International child abduction cases such as the case before me – even when the child is an Indigenous child – are not at all similar to child welfare matters. In Hague Convention matters, the court must determine habitual residence of the child in order to determine the proper forum for the substantive determination of custody and access which occurs later. The focus in determining the proper forum under the Hague Convention is habitual residence, not best interests of the child. The court applies an international treaty and the case law developed with the principle of harmony in mind.

None.

• Section 8: Purpose
• Section 18
• 18(1) Affirmation
• Section 20
• Section 21
• Section 22

Criminal Code, RSC 1985 c C-46. (CC)
Section 718.2(e)

The Constitution Act, 1867, 30 & 31 Vict, c 3. (Constitution Act, 1867)
Section 91(24)

United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14. (Federal DRIPA)
Sections 4; 5; 6

Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44. (BC DRIPA)
Sections 2; 3; 4

Family Law Act, SBC 2011, c 25. (FLA)
Section 80

Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. TS 1983 No. 35. (Hague Convention)
Article 1; 3; 12; 13; 26

United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295 (2007). (UNDRIP)
Article 3; 8; 9; 10; 11; 13; 38; 43

Batten v Batten, 2021 BCSC 2507.

Beatty v Schatz, 2009 BCSC 769.

De Leon Saldierna v Shergill, 2023 BCSC 257.

De Oliveira v Campbell, 2019 BCSC 623.

F v N, 2022 SCC 51.

GB v VM, 2012 ONCJ 745.

Gill v Gill, 2024 BCSC 346.

Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680.

Laranjeira e Silva v Virco, 2024 BCCA 164.

Ludwig v Ludwig, 2019 ONCA 680.

Luongo v Luongo, 2023 ONSC 6013.

Office of the Children’s Lawyer v Balev, 2018 SCC 16.

Paschel v Paschel, 2017 ONSC 6952.

Pasco v Pasco, 2015 BCSC 1412.

Puggioni v Puggioni, 2023 CanLII 98036.

Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5.

Ross River Dena Council v Canada, 2017 YKSC 59.

R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688.

R v Ipeelee, 2012 SCC 13.

R v Kehoe, 2023 BCCA 2.

Thomson v Thomson, 1994 CanLII 26 (SCC), [1994] 3 SCR 551.

Viltman v Borovskaia, 2020 BCSC 381.