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CUSTODY AND ACCESS - Courts - Jurisdiction - Ordinary residence

Thursday, April 04, 2019 @ 8:33 AM  

Lexis Advance® Quicklaw®
Appeal by the father from a declaration of habitual residence and an order requiring return of the child to the mother. In 2015, the parties' child was born in British Columbia. The parties were citizens of China. Six months later, the family returned to China. Litigation arose after the father removed the child from China without the mother's consent and retained the child in Canada while refusing access to the mother. The mother filed a Notice of Family Claim under the Family Law Act that, among other things, sought a declaration that the child's habitual place of residence was China, that the Court lacked jurisdiction to make a parenting order, and that the child was wrongfully removed and retained by the father. The mother sought an order requiring the return of the child. In August 2018, the application judge granted the relief sought. The following week, the father appealed. His request for a stay of the order pending appeal was refused. The mother and child returned to China thereafter. The father appealed the jurisdiction and habitual residence declaration, the return order, and the order refusing a stay pending appeal.

HELD: Appeal dismissed. Any initial error in stating the test for jurisdiction was corrected following submissions, with that correction reflected in the reasons for the ruling. Given the involvement of two capable parents, this was not an instance in which the court should take jurisdiction under its parens patriae power to make orders for the benefit of the child. The findings that the child was habitually resident in China and wrongfully removed by the father were available on the evidence without the need to cross-examine the parties on their affidavits. As the application judge found, the parties had not reached an agreement the child would reside with the father in Vancouver, nor had the mother expressly or implicitly agreed to such arrangement.

Kong v. Song, [2019] B.C.J. No. 337, British Columbia Court of Appeal, D.M. Smith, G.J. Fitch and Butler JJ.A., March 8, 2019. Digest No. TLD-April12019008