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In a recent Ontario case, the court considered the interesting question of how to determine a child’s “habitual residence” for the purpose of an application under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

The Background

The parties began dating in May 2017, started living together in June 2017, and separated in October 2018. They had one child, born in April 2018.

In October 2018, the husband consented to the mother travelling to France with the child for two weeks to deal with legal matters. While she was in France, the mother told the father that she had no intention of returning with the child to Canada.

Four months later, the father travelled to France and brought the child back to Ontario.

The mother brought an application under the Hague Convention, claiming that the child was habitually residence in France and that the father had wrongfully removed her to Canada.

The mother’s application was dismissed. The judge found that the child was habitually resident in Canada when the parties’ relationship ended and that the mother’s wrongful retention of the child in France did not change her habitual residence to France.

The mother appealed.

The Court’s Decision

In dismissing the mother’s appeal, the court found that the application judge did not make an error when deciding where the child was habitually resident in October 2018. The application judge also did not err in her consideration of the circumstances in which the child remained in France for four months. The court found that the application judge’s decision on those issues informed her determination of whether the child was habitually resident in France in February 2019 (when the father brought the child back to Canada).

The court also found that the application judge did not err in her determination of the child’s habitual residence. Indeed, the court found that the application judge properly considered the Hague Convention principles that were set out in a Supreme Court of Canada case.

Furthermore, the court concluded that the application judge did not err in finding that the mother returned to full-time employment when the child was three months old. The court noted that even if the application judge did make an error in this regard, it did not rise to the level required for appellate intervention (i.e., it was not an error that was determinative of the outcome of the case – it was just one of many considerations that went into the determination of the child’s habitual residence).

Finally, the court found that the application judge made no error when she permitted the father to file a late affidavit. While the mother claimed that she was served with the affidavit on the morning of September 16, 2019 (right before the hearing of the application began), the mother’s counsel acknowledged receiving the affidavit on September 13. As a result, the mother could have prepared a responding affidavit if she had wanted to do so. Furthermore, if the mother felt she did not have enough time to respond to the affidavit, she could have sought a short adjournment.

Lessons Learned

An appellate court must defer to an application judge’s decision determining a child’s habitual residence, unless there is a palpable and overriding error (i.e., an error that is clearly wrong, unreasonable, or not reasonably supported on the evidence).

If you have questions about how to proceed with your case, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to schedule an initial consultation.

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