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CUSTODY AND ACCESS - Child abduction - Hague Convention

Wednesday, May 06, 2020 @ 9:20 AM  


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Appeal by the father from dismissal of a Hague Convention application. The father was an American citizen who resided in Texas. The mother was a Canadian citizen who historically lived in New Brunswick. In 2016, the mother took a one-year leave of absence from her employment and moved to Texas, where she met the father. The mother became pregnant with the parties’ child and moved into the father’s home. The couple attended prenatal classes, hosted a baby shower and prepared a room in anticipation of the child’s birth. The child was born in Texas in September 2017. The father was involved in the birth and care of the child. In February 2018, the parties agreed that the mother could travel to New Brunswick with the child to visit her family. The visit lasted one month, with the father attending the last week of the visit. In August 2018, the mother returned to New Brunswick with the child to resume her employment. The plan was that the couple would travel between Canada and the United States as often as possible. The mother ensured that the father had daily FaceTime conversations with the child. The parties ended their relationship in February 2019. Prior to that point, the father travelled to New Brunswick for two visits and the mother travelled to Texas with the child for two visits. In February 2019, the mother applied for sole custody in New Brunswick. In April 2019, an interim order granted the mother custody and declared New Brunswick to be the child’s habitual residence. The father filed a Hague Convention application in New Brunswick seeking the child’s return to Texas. The judge concluded that the child was habitually resident in New Brunswick prior to February 2019 and was not wrongfully retained by the mother. The father appealed.

HELD: Appeal dismissed. The trial judge applied the correct “hybrid approach” test to determine the child’s habitual residence. The judge relied on the proper jurisprudence and conducted a methodical analysis with respect to the evidence presented in relation to the entirety of the child’s situation. The judge set out the facts equitably, providing an overview of the parents’ separate ancestry and culture, their life together, the child’s connection to extended family, the father’s role in the child’s care, and the circumstances before and after the parties’ separation. The judge was alive to the parties’ intention to live as a family in Texas and accepted the father’s version of events where they conflicted with the mother’s account. No palpable and overriding error was established. The decision was not predicated on an erroneous application of a best interests of the child analysis or improper reliance upon international jurisprudence. No error arose from relying upon the court’s parens patriae jurisdiction to order interim sole custody pending a hearing on the issue of custody and access.

J.M. v. I.L., [2020] N.B.J. No. 59, New Brunswick Court of Appeal, K.A. Quigg, B.V. Green and B.L. Baird JJ.A., March 12, 2020. Digest No. TLD-May42020006