Written on behalf of Long Shariff & Associates
A child’s habitual residence is essential in deciding whether a court has jurisdiction to make decisions affecting that child. “Habitual residence” is also an expression used under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).
The Hague Convention sets a procedure for dealing with situations where a child has been wrongfully removed from a state. This procedure discourages parties from “forum shopping” among states (or provinces) when resolving disputes. The finding of a child’s habitual residence can be significant as that can determine whether an Ontario court can assume jurisdiction to make parenting orders.
Habitual Residence Under the Hague Convention
The case of Geliedan v. Rawdah entailed discussion of the proper remedy where a child was wrongfully detained in Ontario. The father brought an application under section 40 of the Children’s Law Reform Act alleging the child was wrongfully removed from her habitual residence in Dubai.
Proceedings had already begun in the United Kingdom, with the U.K. courts making a Consent Custody Order that found the child was habitually resident in the jurisdiction of England and Wales. The parties disputed the circumstances of how they came to reside in Dubai, with the mother alleging that she and the child only went to visit the father and that he later prevented them from leaving by confiscating their passports.
Mother claimed child would suffer harm if returned to Dubai
Where an application for the return of a child is brought under the Hague Convention, the court will first determine the habitual residence of the child immediately before the child’s removal. Once the issue of habitual residence is determined, the Hague Convention requires that the child be returned unless an exception applies. In this case, there was an alleged exception, as it was claimed the child would suffer harm if returned to Dubai. Article 13 of the Hague Convention confirms that the child is not bound to be returned if there is a grave risk that their return would expose the child to physical or psychological harm or place the child in an intolerable situation.
As the United Arab Emirates was not a signatory to the Hague Convention, it did not apply, though the original judge still applied its legal framework. She found the child had been habitually resident in Dubai before determining that there was no risk of serious harm if the child was to be returned to Dubai.
ONCA: Court has broader powers under Ontario law than Hague Convention
The Ontario Court of Appeal disagreed with the original judge’s decision, finding it was an error to rely on the Hague Convention when determining an application under section 40 of the Children’s Law Reform Act. The father argued that the principles governing the Hague Convention and section 40 of the Children’s Law Reform Act were completely interchangeable. The Court disagreed, recognizing that under the legislation, Ontario courts have three possible remedies upon finding a child has been wrongfully detained in the province:
- Making interim parenting orders in the best interests of the child;
- Staying the application; or
- Ordering the return of the child to such place the court considers appropriate.
Contrary to section 40, the Hague Convention requires the child’s return to the state of the habitual residence unless an exception applies. For the Court, there were two fundamental differences between the two types of applications. On the one hand, the section 40 process is not tied to the concept of “habitual residence”. Moreover, under the Children’s Law Reform Act, unlike the Hague Convention.
Discretionary powers under CLRA exercised; U.K. custody order must be resolved
In relying on the Hague Convention, the guiding principle is that the country of habitual residence is the most appropriate location to determine parenting issues. Being a signatory provides certainty around how that state will deal with such matters as countries agree to follow reciprocal obligations.
However, courts still consider both the child’s life before an alleged wrongful removal and parental intentions. Thus, the Ontario Court of Appeal noted that the original judge should have weighed the Consent Custody Order and the dispute between the parents regarding their intentions in locating to Dubai. The judge was not required to determine the habitual residence. Instead, under the Children’s Law Reform Act, the judge should have asked whether the child was wrongfully detained in Ontario.
This was not in doubt, and the mother acknowledged as much while also arguing that the Consent Custody Order remained binding. While the original judge proceeded as if there was no option but to return the child to Dubai, this was incorrect. Section 40 of the Children’s Law Reform Act provides broad discretionary powers. As the U.K. Order was highly relevant and carried significant weight in the proceedings, there was a need to resolve the different accounts offered by the parties before the U.K. courts before ordering the child’s return to Dubai.
Party Alleges They Have Two Habitual Residences in Different Countries
In J.K. v. L.R., the mother resided in Toronto as a Canadian citizen. The father lived in Buffalo, New York, and the pair maintained a long-distance relationship and shared three children. Eventually, the mother and the children went to live with the father in Buffalo, but the relationship broke down one year later, and the mother returned to Toronto with the children. The father claimed the children were wrongfully removed to Ontario.
The mother suggested that the children have two habitual residences. This was not a novel argument, as in Wilson v. Huntley, Justice McKinnon stated that in her view:
“… it is possible for a person, including a child, to have consecutive, alternating, habitual residences in two different States, at separate times. It is a question of fact in each individual case”.
Requirements for determining habitual residence
Previous cases outlined what is required in determining “habitual residence”. The Ontario Court of Appeal found in Korutowska-Wooff v. Wooff that habitual residence is where the person resides for an appreciable period of time with a settled intention, meaning an intent to stay either temporarily or permanently for a purpose such as employment or family. Here, it was clear that the father’s habitual residence was Buffalo, but the mother’s was less certain. She retained a residence in Toronto, and though she moved to Buffalo, she kept her options open and never cut her ties to Ontario. Justice Zisman accepted that the mother had two habitual residences, and as the custodial parent, the children also had two rotating habitual residences.
The case returned before the Ontario courts with the same issues of jurisdiction and habitual residence being considered. The Court found that Justice Zisman’s original decision was not binding, particularly as she did not have the benefit of cross-examination to assess the parties’ credibility and relied on incomplete or false evidence.
Again, the Court considered the children’s habitual residence, noting that the time period leading up to the alleged wrongful removal is relevant, not events after that date. This time, the Court determined that it was the joint intention of the parties to live together in Buffalo. The children did not develop strong ties to Toronto before the move. Even if the mother hoped to maintain some connection to Toronto, that did not nullify her decision to move to Buffalo with the children to live with the father. Finding that the habitual residence was Buffalo meant that the Hague Convention applied, and the children should be returned. The Court did not accept there was a grave risk of harm if the children were returned.
Recognizing How Courts Approach the Issue of Habitual Residence
Habitual residence is a key concept under the Hague Convention, as it determines which state/province has jurisdiction over a child and where the child should live. Determining this can involve looking at the circumstances of the child’s life and the parents’ intention. However, in some cases, Ontario courts retain some discretion to make different orders in locating a remedy where there has been a wrongful removal to Ontario.
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