CANADA - ONTARIO
Court of Appeal for Ontario
CANADA - ONTARIO
6 February 2020
Habitual Residence - Art. 3
Appeal dismissed, return refused
The parents met in 2017 in Canada. The mother is a French citizen and the father a Portuguese citizen and permanent resident of Canada. They had a child in 2018, born in Toronto, where they lived together as a family until October 2018, when the child was six months old. At that time, her mother took her to France. Four months later, in February 2019, the father travelled to France and brought the child back to Ontario.
The parents gave very different versions of the circumstances in which the child was both taken to France and brought back to Ontario. Each said the other wrongfully took the child or wrongfully retained her or both.
In February 2019 the mother brought an application under the 1980 Hague Convention stating that the child was wrongfully retained in Canada and should be returned to France.
The application judge dismissed the Application, finding that the child was habitually resident in Canada and so the Convention did not apply.
The mother appealed the decision.
Appeal dismissed, return refused. The child was habitually resident in Canada.
The Court found that the application Judge had correctly determined the child’s habitual residence and did not accept the mother's argument that the Canadian Court did not have jurisdiction to determine whether the child was wrongfully retained.
The court considered a unilateral change to a child’s habitual residence, the role of parental intention and the relation of the primary caregiver to the child’s habitual residence.