CANADA - NOVA SCOTIA
Nova Scotia Court of Appeal
Reasons for judgment by Beveridge J.A. (Bourgeois and Van den Eynden JJ.A. concurring)
UNITED STATES OF AMERICA
CANADA - NOVA SCOTIA
21 November 2018
Habitual Residence - Art. 3
Appeal allowed, application dismissed
Child Abduction Act, R.S.N.S., 1989, c. 67
A. v. A. (Children: Habitual Residence),  UKSC 60
Balev v. Baggott, 2016 ONCA 680
Bazargani v. Mizael, 2015 ONCA 517
Ellis v. Wentzell-Ellis, 2010 ONCA 347
In re J. (A Minor) (Abduction: Custody Rights),  2 A.C. 562
In re R. Children,  UKSC 35
Korutowska-Wooff v. Wooff (2004), 188 O.A.C. 376
L.K. v. Director-General, Department of Community Services,  HCA 9
Mercredi v. Chaffe, C-497/10,  E.C.R. I-14358
Mozes v. Mozes, 239 F. 3d 1067 (9th Cir. 2001)
Office of the Children’s Lawyer v. Balev, 2018 SCC 16
O.L. v. P.Q. (2017) C-111/17, (C.J.E.U.)
Ruiz v. Tenorio, 392 F. 3d 1247 (11th Cir. 2004)
Thomson v. Thomson,  3 S.C.R. 551
1 child allegedly retained at age 6 months – National of the US Father national of US – Mother national of Canada – Father gave open-ended consent to mother to travel with the child to Canada – Child lived in United States for first 42 days of life – Application for return filed with the courts of Canada in December 2017 – The return decision of the Nova Scotia Supreme Court was appealed to the Nova Scotia Court of Appeal where the application was dismissed – Main issues: habitual residence – the Court of Appeal applied the “hybrid approach” to determine the habitual residence of the child and found the child to be habitually resident in Nova Scotia.
The mother and father were married in Nova Scotia (Canada) in 2014. The father is a U.S. citizen and the mother a Canadian citizen. She moved to Washington State to live with the father on a visitor’s visa in 2015. Their daughter was born in Washington in 2016.
In January 2017, after an incident of domestic violence, the parents agreed that the mother would go to Nova Scotia with the daughter with no set return date. The father signed a U.S. State Department consent form which granted permission for the mother to obtain a U.S. passport for the daughter’s travel. The mother left with the child on 27 January 2017.
The father filed for divorce in Washington in May 2017. The mother petitioned the Nova Scotia Supreme Court for divorce, sole custody and spousal and child support. In December 2017, the father filed a return application under the 1980 Hague Child Abduction Convention.
In February 2018, the application judge ordered the return of the child. He found the child to be habitually resident in Washington and that the Article 13(1)(a) and 13(1)(b) exceptions were not made out. He based his findings on habitual residence on the last settled shared intentions of the parents and the rule that a parent cannot unilaterally change a child’s habitual residence.
In April 2018, the Supreme Court of Canada, in Balev, adopted the “hybrid approach” to the determination of habitual residence. Under this approach, a child’s habitual residence is determined based on all relevant considerations arising from the facts of the case at hand, and no single consideration is determinative.
Application dismissed. The child was habitually resident in Canada and her retention was therefore not wrongful.
In light of the Balev decision, the Court of appeal found the application judge had erred in law due to incorrect principles guiding his determination of habitual residence.
The Court of Appeal fixed the time of the retention in June 2017, i.e. when the mother clearly communicated her intention to stay in Canada and the father communicated he no longer consented to the child remaining in Canada.
The Court of Appeal applied the “hybrid approach” to determine the child’s habitual residence immediately prior to her retention. It recalled that there is no legal test or closed list of factors for habitual residence, that it requires a look at the entirety of the child’s situation and that a child’s habitual residence can change while she lives with one parent pursuant to the time-limited consent of the other.
The Court retained as relevant the facts that:
The Court found that immediately prior to June 2017, the child had become integrated into the family and social environment in Nova Scotia. It concluded that the child’s habitual residence was Nova Scotia and that her retention in that province was therefore not wrongful.
Author: Emmanuelle Jacques