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CUSTODY AND ACCESS - Child abduction - Hague convention

Thursday, January 03, 2019 @ 8:30 AM  


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Appeal by the mother from an order to return the parties' child to the state of Washington. The mother resided in Nova Scotia. The father was a United States citizen and resident of Texas when he met the mother through an online dating site. The couple married in Nova Scotia in 2014. In 2015, the father moved to Washington for a career opportunity. The mother moved to British Columbia to be closer to the father for weekend visits, eventually moving to Washington. In March 2016, the mother learned she was pregnant. The father denied paternity and encouraged abortion or adoption as alternatives. After spending several months in Nova Scotia, the mother returned to Washington and gave birth to the parties' child in December 2016. The following month, the mother and child returned to Nova Scotia after reporting a domestic violence incident. The father signed a consent form permitting the mother to obtain a passport for the child's travels, and the mother agreed not to pursue her domestic violence complaint. In the summer of 2017, the mother refused to visit the father's family in Alberta with the child. The father commenced divorce proceedings in Washington. The mother commenced divorce proceedings in Nova Scotia, seeking support and interim sole custody. In December 2017, the father filed a Hague application alleging the child was wrongfully retained in Canada. In May 2018, the trial judge concluded that the child's habitual residence was the state of Washington, that the mother had wrongfully retained the child in Canada and ordered the child's return to Washington. The mother appealed.

HELD: Appeal allowed. Given the Supreme Court of Canada's recent ruling in Balev, the trial judge employed the wrong test to determine the child's habitual residence. The trial judge focused on the parties' subjective intention about their future in Washington prior to the mother's departure to Nova Scotia with the child rather than the relevant circumstances at a putative date of wrongful detention. Recognizing the importance of an expeditious resolution, and the interest in minimizing uncertainty for the parties and child, it was appropriate for the Court to make a final determination. Here, the father gave open-ended consent to the mother to take the child to Nova Scotia. The mother obtained an ex parte interim sole custody order in Nova Scotia. It was irrelevant that the father obtained a custody order in Washington two months later. In June 2017, the mother clearly communicated her intention to stay in Nova Scotia with the child. The child's habitual residence immediately prior to that date was Nova Scotia based on the mother's tenuous connection to Washington, her close connection to Nova Scotia, and the child's integration into the mother's family and social environment in Nova Scotia. The retention of the child in Nova Scotia was not wrongful. The father's Hague application was accordingly dismissed.

Beairsto v. Cook, [2018] N.S.J. No. 489, Nova Scotia Court of Appeal, D.R. Beveridge, C.A. Bourgeois and E. Van den Eynden JJ.A., November 21, 2018. Digest No. TLD-January22019004