CANADA - ALBERTA
Court of Appeal of Alberta
Rowbotham J.A., O’Ferrall J.A. and Veldhuis J.A.
UNITED STATES OF AMERICA
CANADA - ALBERTA
21 February 2020
Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b)
Appeal dismissed, application dismissed
International Child Abduction Act, RSA 2000, c I-4, s 3
Alberta Rules of Court, Alta Reg 124/2010
1 child allegedly wrongfully removed at age 13 – National of Canada – Divorced parents – Parents have joint custody and mother has primary care – Child lived in Arizona, USA until August 2017 – Application for return filed with the courts of Alberta, Canada on May 18, 2018 – Application dismissed – Main issue: Art 13(1)(b) – It would be an intolerable situation to return the child to Arizona as neither parent resides there.
The father and mother had a child in 2004 while they were married and living in Alberta, Canada. In 2007, the couple divorced. Pursuant to the divorce judgment, the parents had joint custody with the mother having primary care of the child. In 2008, the father moved to the United Kingdom.
In 2011, the mother moved to Arizona, United States of America, with the child and maternal grandmother. The father had consented to this move. The mother, child and maternal grandmother returned to Alberta in 2017.
The father has no connection to Arizona, and there is no family or any other party residing in Arizona who can care for the child.
In May 2018, the father commenced an application under the 1980 Hague Child Abduction Convention for the return of the child to Arizona. The Court of Queen’s Bench of Alberta dismissed the father’s application on July 17, 2018 on the basis that returning the child to Arizona would place the child in an intolerable situation because there is no one in Arizona to look after him and the Arizona Courts have declined jurisdiction over the child. The father appeals this decision.
Appeal dismissed and application dismissed; the child would be in an intolerable situation if returned to Arizona.
The Court of Appeal dismissed the father’s argument that the chambers judge erred by not first determining the child’s habitual residence before applying the 13(1)(b) exception. The Court of Appeal stated that in this instance, the determination of habitual residence would have not affected the outcome of the case: if Alberta was the habitual residence, there would be no wrongful removal and if Arizona was the habitual residence, the article 13(1)(b) exception applies.
The court emphatically approved of the chambers judge’s finding that the child would be in an intolerable situation if returned to Arizona as neither of the parents resided there, the father had no connection to Arizona and the Arizona courts had thus far declined to take jurisdiction over the dispute.
Author: Emmanuelle Jacques and Peter Cole