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When parents separate or get a divorce, there are likely to be discussions related to where the child will live. Determining who will have primary parenting time of a child can be difficult to resolve when the parents live in the same city. However, when the parents live in separate countries, even ones as closely connected as the United States and Canada, these matters can become much more complicated. In a recent decision issued by the Ontario Superior Court of Justice, a father who lives in Massachusetts asked the courts to allow the child to move there from Ontario, where the mother lives. He was unsuccessful in his original request under the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) and came to the courts to appeal that decision.
Mother returns to Ontario following separation
The parties were both born in Kenya, with the father having lived in the United States since 2001 and the mother having moved to Canada with her family when she was nine years old. The father is a green card holder in the United States, and the mother is a Canadian citizen. She had been working as a teacher in Canada before they married.
The parties were married in January 2017 and lived in Massachusetts for the duration of their marriage. They separated in July 2019, with the child being born just under a month later. The child has lived with the mother in Toronto since birth and has significant health issues which require a medical team to provide treatment in Toronto. The child has never been to the United States, though the father has visited Canada once in November 2019.
Father turns to the Hague Convention to have the child brought to the United States
Article 3 of the Hague Convention addresses the wrongful removal or retention of a child if a parents’ custody rights under the law where the child was habitually resident are impacted. Explained in plain language, Article 3 prevents someone from taking a child from the parent they live with or keeping them from where they live with that parent.
Article 3 states,
“The removal or the retention of a child is to be considered wrongful where
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
The Hague Convention applies to countries that have agreed to be governed by the Hague Convention’s rules. Both Canada and the United States are contracting states. In addition, Ontario’s Children’s Law Reform Act states that a court may only exercise jurisdiction over a child if the child is habitually a resident of Ontario (there are exceptions to this, but they do not apply in this case).
Determining the country of habitual residence of a child
The father asked the Motion Judge to find that while the child has become a resident of Ontario, the factors that led to the child living there occurred after he was wrongfully kept in Ontario. Essentially, the father argued that although the child lived in Ontario his entire life, the child should have never been born in Ontario in the first place, and he should have been a citizen of the United States. At the motion, the father claimed he and the mother had an agreement that they would raise the child in the United States and the mother’s decision to move back to Canada contradicted this agreement.
The court did not agree that the Motion Judge made any errors in his analysis and application of the Hague Convention, adding that the Motion Judge did acknowledge the parents’ initial agreement to raise the child in the United States.
Original intentions not significant once relationship begins to deteriorate
The court added that no matter what their original intentions were, things changed when the relationship between the parents began to deteriorate. Similar to the Motion Judge, the court did not give much weight to the father’s claim that he did not know the mother planned to move to Canada with the child. The mother provided the court with letters she had written to the father highlighting her unhappiness with their relationship and the urgency required if they were to address them.
The court added that the child could not have been unlawfully removed from the United States or unlawfully kept in Canada if the child had never lived in the United States in the first place. The court stated,
“It is noteworthy that at the time of his birth, (the child) was a Canadian citizen, in a Canadian hospital with his mother and medical providers. The focal point of (the child’s) life at birth and since is Canada.”
The court agreed with the Motion Judge, finding no error was made in his analysis, and as a result, the father’s appeal was dismissed. The child will continue to live in Canada with his mother.
Contact the Family Lawyers at Johnson Miller Family Lawyers in Windsor for assistance with Child Relocation Matters
If you are a recently separated parent, you might have questions about where your child or children will live, particularly if the other parent has or intends to move to another province or country. To speak with an experienced family law lawyer about matters related to relocation or any other family law matter, reach out to the team at Johnson Miller Family Lawyers. We can be reached online or by phone at 519-973-1500. We serve clients in Windsor, Essex Country, and the surrounding region.
