CANADA - NEW BRUNSWICK
Court of Appeal of New Brunswick
The Honourable Justice Quigg, the Honourable Justice Green and the Honourable Justice Baird.
UNITED STATES OF AMERICA
CANADA - NEW BRUNSWICK
12 March 2020
Habitual Residence - Art. 3
Appeal dismissed, return refused
Office of the Children’s Lawyer v. Balev, 2018 SCC 16,  1 S.C.R. 398
The father was an American citizen and the mother a Canadian citizen. The child was born in Texas, USA, in September 2017, and has an American and Canadian passport. In February 2018 the parents agreed that the mother could travel to Canada with the child to visit her family. Over the next year the father and mother took many trips back and forth to Canada and the USA.
In February 2019, when the mother was in Canada with the child, the parents separated and the father revoked his consent for the child to remain in Canada.
The father claimed that the family planned to settle at his home in the USA and that he had never intended to sell his business, his home, nor move to Canada.
The judge referenced the parties’ intention to live as a family in the USA but found the child to be habitually resident in Canada.
The father appealed the decision.
Appeal dismissed, the child was habitually resident in Canada.
The Court applied the 'hybrid test' developed by the Supreme Court of Canada in Office of the Children’s Lawyer v. Balev: to consider a multitude of factors which relate to the child’s life when making a decision on habitual residence, such as the child’s connection to each country, the environment in which the child lives and the circumstances surrounding the move of the child.
The court stated that, though the mutual intention of the parents is weighed as a factor, it is not solely determinative. No single fact or rigid rule should motivate the analysis and there is no ‘rule’ that the actions of one parent cannot unilaterally change the habitual residence of a child.
The court found no error in the finding of the application judge, who was alive to the parties’ intention yet, applying the hybrid test, determined the child’s habitual residence prior to the wrongful retention was in Canada.
Justice Baird (giving a dissenting opinion) would have allowed the appeal, declared the child to be habitually resident in the USA and made an order of return. Justice Baird found that the application judge had erred in placing too much emphasis on the fact the mother was the primary caregiver, to the exclusion of other factors which mitigated in favour of Texas as the habitual residence of this child.