“Habitual Residence” Defined by Provincial Statute Governs in Non-Hague Abduction Cases

photo of man carrying a baby
Photo by Ricardo Moura on Pexels.com
Despite strong judicial denunciation of self-help measures by Courts world-wide, some parents will always resort to the unilateral removal of a child from their home jurisdiction, usually without notice to the child’s other parent and always without that parent’s consent.

If a parent removes (abducts) a child to a country that is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction, or if a parent removes a child from one Province in Canada to another, the left-behind parent must rely on the provincial law, the Family Law Act in British Columbia to obtain a court remedy, as the Hague Convention does not apply.

Most countries have now signed on to the Hague Convention, but as of 2015, 38 countries had not, including Iran, Saudi Arabia, Pakistan, India, China, Phillipines, Jamaica, and ten African countries.

The accepted protocol is for the parent in the child’s home jurisdiction to bring a court action in that province for the return of the child. It is not unusual for the abducting parent to attempt to persuade a Court in the child’s “new” home, i.e. the province or country where the child has been taken, to exercise jurisdiction.

Nonetheless, this tactic will rarely be successful for the reason that a Court in the new jurisdiction will typically accede jurisdiction to the child’s province or country of residence.

The question to be determined by the Court in British Columbia is whether they ought to take jurisdiction and hear the “return” application, a first step that will only be taken if the Court finds that the child’s “habitual residence” is British Columbia.

An illustration of this is the case of Kong v. Song 2019 BCCA 84 where the parents and their child resided in China. With the mother’s consent the father brought the child to B.C. for a trip, to begin in December 2017 with a stated intention to return to China in February 2018.

However, the father refused to return the child and instead brought a court action in B. C. urging the Court to find that the child’s habitual residence was B.C. not China. The rationale for the father’s claim was that the child had been born in B.C. and lived in B.C. for 6 months following his birth. The B.C. Supreme Court found that the child’s habitual residence was China based on the definition in the Family Law Act:

“72 (2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided
a) with his or her parents,
b) if the parents are living separate and apart, with one parent
i. under an agreement,
ii. with the implied consent of the other parent, or
iii. under an order of the court or tribunal, or
c) with a person other than a parent on a permanent basis for a significant period of time
(3) The removal or withholding of a child without the consent of a guardian does not affect the child’s habitual residence unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extra provincial tribunal.”

What is striking about the Kong case is the Court’s clear opinion that the definition of habitual residence in the legislation governs, and that the concepts of habitual residence flowing from the Hague Convention are not applicable. Noteworthy is the fact that the Hague Convention does not define habitual residence and therefore judicial consideration of the term governs in Hague cases.

This approach is also mirrored in the Ontario Hague Convention case of Korutowska-Wooff v Wooff, 2004 Canlii 5548 ONCA where the Court stated:

[9] I note that the application judge stated that there is also no definition of the term “habitually resident” in the Children’s Law Reform Act. There is a definition of the term in s. 22(2), which defines the jurisdiction of the Ontario courts in custody cases. No argument was made in this case that the definition in that Act has any application (in this Hague case)”

The definition of habitual residence in the Ontario legislation is the same as the British Columbia definition.

Lawdiva aka Georgialee Lang

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