Hague Convention, Habitual Residence and Parens Patriae

Habib v Armin, 2014 ONSC 5330

In this international child abduction case, the Court examines the role of parens patriae doctrine in a legislative gap where the Hague Convention did not apply.

Background

The parties married in an Islamic wedding ceremony in England, subsequently married legally in Ontario, and have a young son together.  In the two years after the child’s birth, the family traveled extensively, splitting their living arrangements for a few months at a time between Pakistan, Ontario, and England.  They lived in Ontario for less than a year then went to stay in Pakistan where the father intended to build a business.  The family planned to eventually return to live in Ontario.

While in Pakistan, the mother took the son to stay with her parents.  Once the father learned that she had taken him to England, he reported the abduction, returned to Ontario, and commenced an application to have the child returned to Ontario.  The mother began proceedings in England and received an ex parte order preventing the child’s removal from the U.K.

The Law

To determine whether the child could be returned to Ontario, the Court looked first to the Hague Convention (the Convention).

The Convention intends to preserve whatever custody arrangement existed immediately prior to a unilateral wrongful removal or detention of a child by their parent across international borders to deter them from seeking more sympathetic courts abroad.  Any child who was “habitually resident” in a contracting nation must be immediately returned in the face of an action that breaches custody or access rights.  A parent cannot unilaterally create a new habitual residence for a child by wrongful removal or retention.

The term “habitual residence” is not defined in the convention.  Canadian courts have occasionally looked to the definition set out in the Children’s Law Reform Act (CLRA) to consider whether or not a child is habitually resident in Ontario.

Canadian jurisprudence further provides the following principles:

  • Habitual residence is a question of fact to be decided upon based on all the circumstances
  • It is the place where the person resides for an appreciable period of time with a ‘settled intention’
  • A ‘settled intention’ or ‘purpose’ is an intent to stay in a place whether temporarily or permanently for a particular purpose;
  • A child’s habitual residence is tied to that of their custodian

If a period of residence does not clearly indicate a child’s habitual residence, evidence of the parents’ shared intention demonstrating an intention to remain indefinitely or for a certain period of time in that jurisdiction is crucial.  The court must determine if the evidence establishes that the child has settled into the new location enough to have a new habitual residence.

Under the CLRA, Ontario courts have jurisdiction to make custody or access orders only in certain circumstances which generally require either the child’s habitual residence or physical presence in Ontario.

Analysis

Did the Convention Apply?

The Court concluded that the Convention was not application for two reasons.

First, the boy was neither habitually resident in Ontario or England as he was wrongfully removed from Pakistan.  Even if Pakistan was the child’s habitual residence, it is not a contracting state to the Convention.

Second, the parent’s last shared common intention was to return to Ontario.  The Court found that the family was in a transitory stage and thus the child had no habitual residence at the time of his removal from Pakistan due to that comment intention.  There was compelling evidence they intended to reside temporarily in Pakistan and eventually return to live in Ontario.  This intention to eventually settle in Ontario was bolstered by the parties owning a family home in the province and the mother’s recently secured Canadian immigration status, Social Insurance Number and Ontario Health Card.

Parens Patriae

As the child was neither habitually resident nor physically present in Ontario at the commencement of the father’s application, s. 22(1)(a), s. 22(b),  s. 23 of the CLRA were not engaged to allow the Court to exercise is jurisdiction.

Since this left the child in a precarious position, the Court turned to its inherent power under parens patriae doctrine for a solution to exercise its jurisdiction over the child.  While it is inappropriate to apply parens patriae to circumvent legislation, there was no such conflict in this case.

Even though Ontario was not the child’s habitual residence, the Court found a real and substantial connection between the family, the child, and the province at the time of the wrongful removal.  Their move to Pakistan from Ontario was always meant to be temporary with a long-term intention of returning.  Thus it was in Ontario where evidence of the boy’s best interests must be considered.  As such, it was necessary for the Court to engage parens patriae to assume jurisdiction over the custody and access of this child to protect him.

The Court granted the father temporary custody and ordered the mother to return the child to him in Ontario.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.