Does a court have jurisdiction to consider views and preferences at the habitual residence stage of a custody application?
Ontario, Canada
The following excerpt is from Ludwig v. Ludwig, 2019 ONCA 680 (CanLII):
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 CanLII 26 (SCC), [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.
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