Considerations When Determining Habitual Residency

The factors relevant to the determination of habitual residency were recently reanalyzed in a British Columbia case, Gill v. Gill, [2024] B.C.J. No. 649. In this case, the Appellant Father tried to enforce his application for an order that his child be returned to the United States. The Respondent Mother was a Canadian citizen while the Appellant Father was an American citizen. The parties met in 2018 and married in June 2015 in California. The parties later had a child, born in April 2023 in Las Vegas. The Mother travelled to Vancouver from Las Vegas in May 2023 with their child and remained in Vancouver. The Father stated that he allowed the child to travel with the Mother as the Mother had a death in the family, and the child was breastfeeding. He stated that their intention was to return home in three months time. In Vancouver, the child resided with the Mother, her parents and sister. The Father visited the Mother and the child in Vancouver numerous times after May 2023. The relationship between the parties was tumultuous as the Mother claimed emotional and verbal abuse. There was evidence to support the allegations of abuse throughout their relationship, and evidence was provided regarding specific events that occurred in late 2023 to conclude that the abusive behaviour would not change. This led the Mother to decide on November 6, 2023 to separate from him. The Father then brought forth an application to have the child returned.

The Chambers Judge reviewed the contested issues on the application which were as followed:

• whether the Respondent Mother wrongfully removed the child from the United States on May 21, 2023, based on the Appellant Father’s assertion that his consent to the removal was vitiated by her deceit; and
• if the removal was not wrongful, whether the Respondent Mother wrongfully retained the child in Canada in early August 2023, when she refused to return the child.

The issues depended on whether the parties agreed that the child’s visit to Canada would be limited to 3 months. The judge noted that there were numerous conflicts in the parties’ evidence however, the Appellant Father’s credibility was a significant issue. The judge specifically focused on the disputed evidence of family violence, specifically the Appellant Father’s abusive behaviour as it was a factor in the Respondent Mother’s decision to remain in Vancouver. Evidence illustrated that the Appellant Father would not allow the Respondent Mother to leave with the child unless extreme circumstances were present, illustrating family violence. The judge did not agree that the Respondent Mother deceived the Appellant Father into agreeing to a 3 month visit -instead the visit was deemed to be indefinite. On this basis, the judge found that the child’s removal was not wrongful, and found that the Appellant Father consented to the child remaining in Vancouver for an indeterminate time period. Text messages between the parties supported this conclusion. The Court then focused on where the child was habitually resident prior to the retention date. The factors that were considered were as follows:

• the circumstances of the child’s life in Las Vegas before his removal on May 21, 2023;
• his social and family connections both in Las Vegas and Vancouver;
• the living and employment circumstances of the parties; and
• the involvement of each of the parties, and their extended families, in the child’s daily care.
• Given that the child only spent approximately a month in Las Vegas since his birth but a majority of his time in Vancouver, the judge deemed that the child was habitually resident in Vancouver prior to the date of separation being November 6, 2023.

On appeal, the Court was to determine whether the Chambers Judge misapplied the test for habitual residency by reducing the importance of parental intention, and whether the judge overly relied on the allegations of family violence using it to factor into the child’s best interests. The appellate Court also considered the intention of the parents and the child’s family environment in Canada, and took into account the allegations of family violence when the Respondent Mother formed her intention to remain in Canada. The appellate Court concluded that the Chambers Judge did not determine habitual residence solely by the identity of the primary caregiver. Moreover, the Chambers Judge did not overlook parental intention, and did not err in using parental intention in the framework when examining habitual residence. As for the second ground of appeal, the Chambers Judge stated that family violence allegations were relevant to the question of when the Respondent Mother formed the intention to remain in Canada. The appellate Court found that this was relevant to the date of the child’s retention and allegations of deceit claimed by the Appellant Father. While the Respondent Mother believed she could save her marriage when she left Las Vegas in May 2023, circumstances in late 2023 proved otherwise. In coming to a final decision, the Chambers Judge correctly considered the circumstances and connections the child had in both countries along with other factors which were determinative of habitual residency.

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