Lord Slynn also cited with approval Lord Brandon`s remarks on “habitual residence” from In Re H. (Minor) (Abduction: Custody),[29] that habitual residence is not defined in the Convention and should retain its natural and ordinary meaning and not be treated as an artistic concept. Whether a person has his or her habitual residence in a place is a question of fact, not a question of law. A person may cease to ordinarily reside in a place on one day if he or she leaves with the firm intention of not returning, but it is unlikely that he or she will have his or her habitual residence in another place on a single day. Presence for a significant period of time and a firm intention to remain indefinitely are necessary to establish habitual residence. If a very young child is in the sole lawful care of one of the parents, the habitual residence of the child is necessarily the same as that of the parents. In my view, the same principles apply in the common law provinces of Canada, subject to the caveat, which may not be apparent from Lord Brandon`s comments, that, because of the way the right to move has developed in the common law provinces, a custodial parent does not have the unilateral right to terminate the child`s habitual residence without an order from the court or the express or implied consent of another person. who is entitled to exercise parental responsibility. unless it is established that the rights of custody exercised by the parent who moves in accordance with the child`s habitual residence at that time imply the right to change the child`s residence.
This decision changed the determination of habitual residence in the United States and changed the language and landscape of habitual residence in the future. Despite the positive effects of a now uniform standard of habitual residence, we remain concerned about the practical consequences of the Court`s adoption of a clear standard of error control. It has been a year since the United States Supreme Court first addressed the issue of habitual residence in the highly anticipated Monasky v. Taglieri, 140 pp. Ct. 719 (2020). The controversy? How is a child`s habitual residence to be determined under the Hague Convention and what should be the standard of review of the remedy after the child has made that decision? This article is an introduction to the Hague Convention on International Child Abduction and the recent Monasky case. In Dale v.
Dale [59], Belch J. refused to exercise jurisdiction over custody of two children who had been brought from Pennsylvania to Ontario by their mother with the father`s consent to attend school for a limited period of time until the end of school in June 2003. The father extended his consent until 31 August 2003 and then until 31 December 2003. In November 2003, the mother informed the father that she intended to remain in Ontario with the children. Justice Belch found that prior to moving to Ontario, the children had been ordinarily resident in Pennsylvania under subsection 22(2) of the CRRA, that the mother could not unilaterally change the children`s habitual residence, and that the father had never consented to more than temporary residence in Ontario. It also held that under the Convention, children should be returned to Pennsylvania since, under CLRA, the children were ordinarily resident in Pennsylvania and had their habitual residence there under the Convention. In Chan v. Chow [74], the BCCA dealt with a similar problem, but in a more traditional way. The parties were married in Alberta in 1993, their child was born in 1994 and separated in 1995. In January 1996, the mother was granted interim custody by unilateral order and brought the child to Australia without informing the father. She then took the child to Hong Kong.
In the meantime, the father has been granted provisional custody. He also moved to Hong Kong to attempt reconciliation. In April 1997, the parties divorced in Alberta and were granted joint custody. In July 1998, the parties made another attempt at reconciliation in Ontario. The family moved to British Columbia in August 1998 and Hong Kong in June 1999. The parents separated permanently while living in Hong Kong, and the child spent about the same amount of time with each parent. In March 2000, the father returned to British Columbia with the child, but without his knowledge and consent. The mother requested the child`s return to Hong Kong under the Convention. The Chamber judge found that the child`s Hong Kong residence permit and the mother`s immigration status in Canada were about to expire, and then found that the Convention was not applicable because the child was not ordinarily resident in Hong Kong immediately prior to the father`s transfer to British Columbia. The Court of Appeal disagreed and ruled that the child had habitually resided in Hong Kong immediately prior to the removal. She had been there for nine months, which was considerable, the parents clearly intended to make Hong Kong their place of residence before their final separation, which meant that they had their habitual residence there, and the habitual residence of the child was linked to the habitual residence of his parents.
Since the parents shared joint custody, neither parent had the right to unilaterally change the child`s place of residence. However, this did not stop, as the child`s return carried the risk of an intolerable situation, since the child had to move again after the expiry of his residence permit in Hong Kong and the mother had presented an unstable lifestyle. As a result, the court refused to order the child`s return under the Convention and sent the case back to the province for trial. The Court`s reasoning confirms that the fact that a person`s immigration status is uncertain does not mean that he or she cannot establish habitual residence in a place, although this may be a factor depending on whether he or she reasonably intends to remain there indefinitely. (1) the return of the child to his or her habitual residence would expose him or her to a serious risk of physical or psychological harm; Divorce proceedings may require you to prove that you and/or your spouse have your habitual residence or domicile in England or Wales. Therefore, you need to understand the definitions of habitual residence and domicile. The concept of habitual residence is used in a number of international conventions, starting with the Hague Convention of 14 December. November 1896 and a number of international conventions dealing with conflicts to supplement or replace the traditional connecting factor of residence, for example: However, in the 1980 Rome Convention, it was replaced by the new connecting factor of the seat in relation to legal persons.
This is the basis of the Convention relating to the Status of Refugees, the Convention on International Child Abduction[1], etc. In Cruse v. Chittum,[34] Lane J. echoed counsel`s argument that while “habitual residence” focuses on the type and quality of residence, regular physical presence also appears to be implied. Many authors and commentators have adopted a similar definition, placing “habitual residence” between “domicile” and “domicile” on a spectrum of links between a person and a place [35]. While proof of intent is not as important in determining habitual residence as it is in establishing residence, it may be a relevant factor in determining the quality and nature of a person`s presence or residence in a place.