Habitual Residence – Art. 3
The Court observed that the concept of habitual residence is defined neither by the Convention nor by the Act implementing it in Canadian law, and that the Civil Code of Quebec provides no further particulars. The Court referred to the comments of Judge Chamberland according to whom: “a child’s “habitual residence” is not necessarily its “domicile”.
The two concepts are separate […]. The concept of “habitual residence”, therefore, is an issue of fact rather than intent. […] Only the reality of the children should be taken into account in determining the location of their habitual residence. The parents’ desires, wishes or intentions should, as a general rule, be set aside.
A child’s habitual residence is determined according to its experience, and not to its parents’ intentions. […] The requirement of “habitual” residence adds an element of stability and durability to the residence. Every case is a special case. There is no minimum duration required to conclude that a “habitual residence” has been established”. The Court accordingly stressed that the father’s claim was based “on intentions rather than facts”. In his view, on her arrival in Quebec, the mother was coming to “set up as a family”.
The mother did confirm having “allowed the father to convince her” to try and resume cohabitation. However, the couple’s relationship being stormy, both parents agreed that the mother and child would return to France on 20 October, where the child’s life “resumed its ordinary course” (the child returned to his room, toys, etc.; the mother had kept all her furniture, car, insurance contracts, etc.). Thus, it was clear that the mother had gone to Canada only with bare necessities and that the duration of her stay with the father accompanied by the child was to depend “on conditions suited to maintenance of a harmonious relationship in the couple”.
In addition, no application was made with the intention of settling the child in Quebec (no application relating to its passport, to health insurance, or to a pediatrician) until the father took steps for the purpose in late January 2011, after the application for the child’s return. The lower court drew the conclusion that the circumstances reflected the establishment of a temporary residence so that the child had not forfeited his habitual residence in France. It was even clearer upon an examination of the child’s stay in Quebec in November: the mother had taken a return ticket and the luggage was limited to the needs of the mother and child for the expected fortnight.
Consent – Art. 13(1)(a)
According to the father, the mother had consented to the child’s settlement in Quebec. He produced an attestation signed by both parents whereby the mother and child would return to Canada on 29 October to live there together. The mother disputed her signature.
The Court noted that “any layman” could see that the signature was a forgery and that the father had clumsily attempted to mislead the Court, which was not unusual since he had already lied, as could be deduced from the “inconsistencies”, “contradictions” and “nonsenses” in several parts of his testimony. Thus, the father had failed to prove, whereas he bore the related burden, that the mother had concretely and unequivocally consented to the child’s removal within the meaning of the Act.
Grave Risk – Art. 13(1)(b)
The father also asserted a grave risk of danger on the grounds that the mother displayed “features of violence, mental or emotional imbalance which did not allow her to care for the child”. The Court noted that this claim was “incompatible” with the fact that the father had “never applied for custody of the child”, either in France or in Quebec, that the mother’s violence had not been recorded and that the father had allowed her to leave with the child in late October 2010.
The evidence adduced accordingly did not prove that the mother lacked the qualities required to care for the child. In addition, the mother had provided testimony consistent with an attitude contrary to that described by the father.
Finally, the Court noted that the father had “directed his evidence at the seriousness of the harm that the child might incur rather than the seriousness of the risk involved in the child’s return to the location of his habitual residence” as recognized by precedent: the court’s concern in this case related “rather to the effect that the separation of the child from the parent exercising his sole custody for the past seven months [would have]”.
“However, in the spirit of the applicable law, this [was] not a risk in itself. Admittedly, no expert had issued an opinion on the matter, but a protective order had been delivered so that pending judgment, the mother could see the child from whom she had been separated for seven months” and “gradually restore contact” with him. In addition, she was “capable of returning the child to France” and caring for him as she did before the retention.
The mother claimed against the father “all the expenses incurred for the child’s return to France, including professional expenses”. The Court noted that Article 39 of the Act conferred on the courts a related discretionary power. It noted that the mother had limited resources and had “incurred substantial expenses in the child’s interest owing to unlawful action by the father”, and accordingly awarded costs against the father.
The Court held that having regard to the urgency of the situation, immediate enforcement of the return order should be ordered, as is in fact customary in any matter relating to the custody of children.
Author of the summary: Aude Fiorini, United Kingdom