CANADA - MANITOBA
Court of Queen’s Bench of Manitoba (Family Division)
UNITED STATES OF AMERICA
CANADA - MANITOBA
26 November 2019
Habitual Residence - Art. 3 | Rights of Custody - Art. 3
Appeal allowed, application dismissed
Child Custody Enforcement Act, R.S.M. 1987, c. C360, s. 17(3)
Court of Queen’s Bench Rules, Man. Reg. 553/88
The Domestic Violence and Stalking Act, C.C.S.M. c. D93
Massachusetts General Laws, MA Gen L ch 209C § 10 (2018)
The Family Maintenance Act, C.C.S.M. c.F20
Ludwig v. Ludwig, 2019 ONCA 680
Office of the Children's Lawyer v. Balev, 2018 SCC 16
Pérez‑Vera, Elisa. “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction. Madrid: Hague Conference on Private International Law, 1981.
1 child allegedly retained at age 3 – National of Canada and United Stated – Unmarried parents – Father national of Brazil – Mother national of Canada – Child lived most of her life in Canada but spent several months in the United States on three separate occasions – Application for return filed with the courts on August 30, 2019 – Application dismissed – Main issue: Art 3 – The child was habitually resident in Canada and therefore there was no wrongful retention
The father is a Brazilian citizen, but has lived in Massachusetts, United States, since 1999. The mother is a Canadian citizen and lives in Manitoba, Canada. She has four children from a previous marriage. The couple began a relationship online and met in-person for the first time in July 2014 when the mother travelled to Massachusetts for a one-week visit. The mother visited Massachusetts again in August 2014 and became pregnant. She returned to Massachusetts in March 2015. The child was born there in May 2015 and has both American and Canadian citizenships. The mother and child returned to Manitoba in September 2015. The mother and child thereafter returned to live with the father on two occasions, from February to July 2016 and from September 2017 to March 2018. Since then, the child has been in her mother’s care in Manitoba. The father expected the mother and child to return to Massachusetts in fall 2018 but the parents’ relationship ended. In December 2018, the parents unsuccessfully tried to arrange a visit between the father and the child. The father’s last contact with the child was on December 24, 2018.
On June 26, 2019, the father filed a request with the American Central Authority to have the child returned to the United States under the 1980 Hague Child Abduction Convention. The Central Authority for Manitoba thereafter filed, on behalf of the father, a Notice of Application with the Manitoba Court on August 30, 2019.
This return application was heard concurrently with an application filed by the father to set aside a protection order that was obtained in August 2019 by the mother and that prohibited the father to communicate with the mother or the child. The father’s set aside application was granted and the protection order set aside in its entirety.
Application dismissed; the child was habitually resident in Manitoba, Canada.
The Court applied the hybrid approach mandated by the Supreme Court of Canada in Balev and the two-step analytical framework proposed by the Court of Appeal for Ontario in Ludwig.
Firstly, the Court considered the date of the alleged wrongful retention and used the date of December 24, 2018, as alleged by the father.
Secondly, the Court considered where the child was habitually resident immediately prior to the retention.
The Court found that the child had links to both Canada and the United States. It recalled that the child has dual citizenship and has received healthcare in both countries. It also noted that the child was three-and-a-half years old at the time of the application, that she had spent two-thirds of her life in Canada and had always lived with her mother. The Court however expressed no doubts that the father was involved in the child’s care when she was in the United States and that he had tried to maintain contact with her when she was in Canada.
The Court went on to analyse the evidence presented by both parents about their intentions (e.g. items of clothing and toys left in the United States; unmaterialized plans to get married, to settle in one country or the other, or to legalize their status in the US) and found that there was no clear shared or sustained parental intention respecting the child’s residence.
The court concluded that the child was habitually resident in Canada immediately prior to the alleged removal and that therefore the Convention did not apply.
While the Court found the child to be habitually resident in Manitoba and dismissed the application on that basis, the Court nevertheless noted that it appeared that the father did not have custody rights under the law of Massachusetts. The Court, referring to s. 10 of the Massachusetts State Custody Legislation, MA Gen L ch 209C § 10 (2018), noted that, in the absence of a court order, the mother of a child born out of wedlock has custody of the child despite the father having provided a voluntary acknowledgment of parentage.
Author: Emmanuelle Jacques and Peter Cole