Recent case law: Determining a child’s habitual residence

Before a court can hear a custody case, it must determine that it has jurisdiction over the family. Usually, this is straightforward: both parents and the children live in the community where the court case is initiated.

Sometimes, one parent will flee the jurisdiction with the children and attempt to start a custody case in their new community. With some exceptions (more notably, where the parent can demonstrate to the court that they fled in order to ensure the safety and well-being of the children), these cases generally have to move back to the children’s habitual residence.

Two recent cases, one in Saskatchewan and one in Ontario have grappled with the issues that can arise when there is uncertainty about the child’s habitual residence and the child has been removed from one jurisdiction to another by one parent without the consent of the other parent.

In Elnagger v Hamdan 2014 SKCA 104, the family had been transient and the habitual residence of the children was not immediately obvious.

Habitual residence is simply the place the children lived before the parents separated.

In this case, the family had lived in a number of locations and, by the time the case went to trial, the parents had not lived together continuously since 2009 when the father came to Saskatchewan on a student visa. Since that time, the parties had spent time together “as a family” in Egypt and Canada for short periods of time, most of it outside Saskatchewan.

In 2011, the family applied for permanent residency in Canada, which was granted in 2013, at which time the mother and children spent roughly one month in Saskatchewan. They travelled to Canada from Egypt in late June with return airline tickets for the end of August.

While they were here, the father successfully applied ex parte for an order to stop the mother from removing the children from Saskatchewan without his consent. At this point, the mother left the father and moved, with the children, into transition housing. The father refused to give the mother the children’s passports, changed the return date on the airline tickets to a later date, and then cancelled the tickets entirely.

The trial court declared that Saskatchewan did not have jurisdiction over the children because they were not habitually resident in Saskatchewan. Goebel J. also found that even if she had found the children to be habitually resident in Saskatchewan, she would have declined jurisdiction because she viewed Egypt as the more appropriate jurisdiction. She encouraged the father to return the children’s passports to the mother, which he refused to do. Eventually, because the mother applied to the court, the passports were handed over to the mother’s lawyer.

The father appealed both these decisions to the Court of Appeal, which wrote:

In our view, the factual matters raised by the father do not address the fundamental issues, notably where the children have the most connection and where the best evidence in relation to them may be obtained. In this case, the critical fact is that the children have never spent more than four weeks in Saskatchewan in any given year until this year when, after six weeks, the father obtained an ex parte order preventing their removal.

It would hardly be in the best interests of the children to order a protracted hearing regarding the present and future situation in Egypt. . . . it does not change the basic fact that the mother has been the primary caregiver of the children for the whole of their lives.

The Court of Appeal upheld the decision of Goebel J. that Saskatchewan did not have jurisdiction and that the father should remove all impediments to the mother returning to Egypt with the children as well as the decision of Turcotte J. requiring the father to return the children’s passports to the mother.

In Habib v Amin 2014 Carswell Ont 14220, Lafreniere provides a very helpful review of the Hague Convention, habitual residence and permissible and non-permissible international movement of children by a parent.

In 2011, the parents married in a traditional Islamic wedding ceremony in England and in a civil ceremony in Canada. They had one child, Faris. Both before and after Faris was born in 2012, they lived primarily in England and Ontario. Much of the time, the parents were living in different countries, and once the child was born he always lived with the mother, wherever she was living. Eventually, the mother’s Canadian immigration application was accepted, at which point she applied for a social insurance number and an Ontario health card.

At the end of 2012, the mother and child travelled to Pakistan. The father joined them there, and they remained, together, in Pakistan for several months, returning to Ontario in May 2013. The father needed to return to Pakistan to expand his business, and he did so in late 2013. The mother and child joined him there at the end of the year, after spending some time in England. They remained together in Pakistan until July 2014, at which point, the mother and Faris went to stay with her parents elsewhere in Pakistan. The mother took the child from there to England without the knowledge or consent of the father.

The father notified the authorities that the mother had abducted the child and returned to Ontario. In August 2014, he received documents from the mother’s lawyers in England, including an order prohibiting the father from removing the child from England or the mother’s care without the consent of either the mother or the court.

Lafreniere J identified the three questions she needed to answer:

  • What is Faris’ habitual residence?
  • Was he wrongfully removed from that habitual residence and is he being wrongfully kept in England?
  • Does the Hague Convention apply?

In her analysis, she first confirms that the primary intention of the Hague Convention is to maintain whatever child custody arrangement was in place immediately before the removal of the child and is not to determine issues of custody or to consider the child’s best interests. She described the obligation of a court hearing a Convention application to be “to ensure the child is returned to the place where those best interests ought to be determined.”

She quoted a useful comment from a decision in an earlier case (Medhurst v Markle (1995), 26 O.R. (3d) 178 (Ont. Gen. Div.), which stated that the principal objective of the Convention:

Is to prevent the harmful practice of unilateral removal or retention of children from their habitual residence and to require that what is in the best interest of the child be determined by the jurisdiction of the child’s habitual residence at the time of the removal or retention. As application under the Hague Convention is not an application for custody. The welfare of the child, on a Hague application, is relevant only to the question of whether the return of the child would expose him or her to grave risk of physical or psychological harm as provided in art. 13 (b).

With respect to Faris’s habitual residence, Lafreniere determined that the term, while not defined in the Hague Convention, should be interpreted broadly to mean the child’s ordinary residence. She also found that a parent cannot change a child’s habitual residence by wrongfully removing the child from one location and retaining him in another. The court is to examine the facts, the shared intentions of the parties, the history of the child’s location and the settled nature of the family to determine the child’s habitual residence.

Lafreniere J engages in an exhaustive and interesting review of precedents in cases determining habitual residence before reaching the conclusion that Faris’s habitual residence was Pakistan from which he was wrongfully removed by his mother. She also notes that Faris’s habitual residence, like other children’s, is determined by his parents, both of whom were residing in Pakistan.

Because Pakistan is not a signatory to the Hague Convention, it does not apply; as it also would not have applied had Faris been found to have no habitual residence.

Lafreniere then chooses to rely on the court’s parens patriae jurisdiction to exercise jurisdiction over Faris. She finds that there is a real and substantial connection between the parents, Faris and Ontario even though he was not habitually resident here at the time the mother wrongfully removed him.

In ordering that Faris be returned to the father’s care in Ontario, she stresses that she is not making a determination about custody or about which parent is the better parent, but rather simply determining the jurisdiction in which the custody and related issues should be decided. She grants the father temporary custody without prejudice to the mother. In her conclusion, she writes:

My order is based on the best interests of Faris and to ensure that the jurisdiction to which he and his parents have a real and substantial connection is the jurisdiction determining issues of custody and access. The actions of the mother in wrongfully removing Faris from his habitual residence and breaching the father’s right to custody of the child cannot be condoned.

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