MacLean Law’s Provincial Child Abduction Jurisdictional Disputes Lawyers want the public to be alerted to a new blockbuster Supreme Court of Canada case on how past Hague decisions, and their new decision on analogous provincial court legislation, may guide Provincial Child Abduction Jurisdictional Disputes Lawyers in their approach in these disputes. Our top rated habitual residence dispute lawyers routinely deal with this issue. So, What is the habitual residence test for children?
The area is complex so make sure you hire family lawyers who deal with, and who also have a high success rate on Provincial Child Abduction Jurisdictional Disputes.
In today’s blog, jointly written by Fraser MacLean and Lorne N. MacLean, KC, we are pleased to see that our successful argument in a recent BC Supreme Court case was adopted by the SCC in their decision released today.
The Hague Convention on the Civil Aspects of International Child Abduction Tel: 604 602 9000
The key focus of The Hague Convention on the Civil Aspects of International Child Abduction aims to protect children from the harmful effects of international parental abduction by ensuring their prompt return to their country of habitual residence. Its core principle is that custody disputes should be resolved by the courts in the child’s habitual residence, not by the abducting parent’s unilateral actions.
Best Child’s Habitual Residence Lawyers
MacLean Law has been involved in a long running child jurisdictional dispute case involving both BC and Texas involving the Family Law Act and issues regarding recognition, with partial supersession of an August 2023 Texas Order, and finally non-recognition of a number of later Texas court orders as contrary to the children’s best interests. We cited a recent BCCA decision where A Brazilian Court allowed a mother to relocate with a child on a time limited basis but this didn’t prevent the child’s habitual; residence from being determined to be in BC.
What is the habitual residence test for children?
A Texas Federal Hague Court also got involved after the husband did not return the children to BC after a summer holiday in Texas and ordered the return of two children to BC. The Texas federal also issued a rare injunction against the father, his lawyers and the Texas State Court from taking any further action except to enforce BC child parenting and guardianship orders. The BC Supreme Court subsequently made orders concerning the children’s residence, decision making, schooling and where parenting time for the father will occur. ensuring the children remain in BC pending further applications on the issue of residence, relocation, child support and guardianship issues.
Vancouver Provincial Child Abduction Jurisdictional Disputes Lawyers Tel: 604 602 9000
The question many family lawyers in Canada faced arises from how past SCC Hague Abduction Convention decisions including Balev, apply to provincial legislation child return disputes involving multiple jurisdictions and forum conveniens disputes. In our case, which involved multiple court appearances over several months, Justice Morley of The BC Supreme Court decided (CLEBC summary quoted) that:
Further to an order recognizing a Texas parenting order but superseding it, the court considering respondent father’s application, brought after Texas court had addressed claimant mother’s immigration issues, to recognize the order without supersession — Court dismissing application, finding that recognizing the order would be contrary to public policy in BC where the order was made without hearing the children’s views about moving or including findings grappling with earlier findings that father had engaged in and was likely to continue to engage in “family violence” —
The Court considering the children, age 6 and 9, would suffer serious harm if removed from BC, taking into account risk of physical and psychological harm, and separation from their mother who had been their primary caregiver
BC Provincial Child Abduction Jurisdictional Disputes Lawyers Tel: 604 602 9000
Today’s new blockbuster Supreme Court of Canada decision involving disputes over jurisdiction involving children and their habitual residence for purposes of NON- HAGUE provincial legislation governed disputes held:
Per Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. ( from the SCC website):
For the purpose of determining if Ontario courts have jurisdiction to hear a proceeding brought under the CLRA concerning a child who is not subject to the Hague Convention, the definition of “habitually resident” in s. 22(2) of the CLRA requires the court to look to where the child was residing at a prescribed time.
The guiding principle in determining if the child was residing in a place is whether the child was at home there, not whether the parents had a settled intention to reside in the place. In the instant case, Ontario courts properly took jurisdiction. The motion judge considered all the relevant circumstances and concluded that the family was residing in Ontario when the child last lived with both parents. There is no basis to interfere with that finding.
A court may only make parenting and contact orders under Part III of the CLRA if a ground establishing its jurisdiction has been made out. The ground for jurisdiction set out in s. 22(1)(a) of the CLRA is based on habitual residence. The CLRA expressly defines what it means for a child to be “habitually resident” in s. 22(2) and (3). Section 22(2) provides that a child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred: (1) the child resided with both parents; (2) the child resided with one parent under agreement, consent, acquiescence or court order; or (3) the child resided with a person other than a parent on a permanent basis for a significant period of time. Section 22(3) adds that habitual residence cannot be altered by the removal or withholding of a child, unless it is done with the consent of all persons having decision-making responsibility with respect to the child or there has been acquiescence or undue delay in commencing due process. The combined effect of s. 22(2) and (3) is that habitual residence is determined in reference to the most recent time at which both of two conditions were met (the “prescribed time”): (1) the child “resided” in one of the three circumstances enumerated in s. 22(2); and (2) the child was not removed or withheld without the consent, acquiescence or undue delay of all persons having decision-making responsibility within the meaning of s. 22(3). A court faced with the question of whether the child was habitually resident in Ontario must, then, simply ask whether the child “resided” there at the prescribed time.
The CLRA does not define what it means to “reside”. The ordinary meaning of “to reside” is simply to live or be at home in a place, in whatever form that takes. The meaning of “reside” in the specific context at issue must be understood in reference to the general purposes of Part III, which include to ensure that applications to courts concerning children will be dealt with on the basis of their best interests, to avoid jurisdictional overlap, to discourage the abduction of children as an alternative to due process and to provide for effective enforcement of orders concerning children.
The hybrid definition of “habitually resident” discussed in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, in relation to the Hague Convention does not apply directly to s. 22 of the CLRA; however, similar considerations may still inform the analysis, as the purposes of the Hague Convention are similar to those of Part III.
An approach to the meaning of “reside” that focuses on shared parental intention must be rejected.
Best Child Parenting and Guardianship Dispute Lawyers Tel: 604 602 9000
Abductions as well as improper attempts to remove a child from its habitual residence need immediate action call on of our best Provincial Child Abduction Jurisdictional Disputes Lawyers immediately if your feel a storm is brewing on this issue.
