This case is about a proper jurisdiction of the courts as it relates to the habitual residence of the children.

Background

The parties were never married and have two children together. Both children were born in Nova Scotia while the father worked in the Canadian Navy. After a near 9 year relationship, the parties split in 2018 following the father’s diagnosis with schizophrenia and the mother left the father with children. During this time, the mother and the children were receiving support from their local Resource Center. A few months after the split, the mother and the children returned to living with the father.

In October 2019, the father was posted in Ottawa for his military job, and the family moved there. In January/February 2020, the mother and the children planned on moving back to Nova Scotia, but due to COVID-19, their plans were halted. In July 2020, the parties separated, and the mother moved back to Nova Scotia with the children. The mother brought an ex parte motion with the Nova Scotia Supreme Court (Family Division) and obtained interim custody of the children.

The father filed an urgent Motion seeking the return of the children from Nova Scotia to Ottawa.

Analysis

The court first analyzed which court have jurisdiction over the parties’ matter. The father argued that the appropriate jurisdiction was Ontario because the ordinary and habitual residence of the children was Ottawa before they were unilaterally moved to Nova Scotia. The mother argued that Nova Scotia was the proper jurisdiction since that ‘s where all the children’s support systems were located.

The court referred to section 22(2) of the Children’s Law Reform Act (CLRA) where "habitual residence" is defined as where a child is habitually resident in the place where he or she resided, either with a) both parents, b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

The court also referred to Section 22(3) of the CLRA which states that “The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.”

The court decided that the proper jurisdiction of the matter was Nova Scotia. While the father cited cases whereby the court found that the proper jurisdiction was in the place the children were living prior to being unilaterally moved, the court found that this matter differed on several grounds – First, the children were born in Nova Scotia where they resided for the majority of their lives. Second, they only resided in Ottawa for a few months. Three, their stay in Ottawa would have been shorter had the COVID-19 Pandemic not happened. Lastly, the children have support systems in Nova Scotia, including their physician, Resource Center, and extended family. The court overall found that the mother’s decision to return to Nova Scotia was not fueled by a motive to avoid Ontario as a jurisdiction, and that the children have much more substantial connection to Nova Scotia than Ottawa.

Although the court planned on dealing with issues relating to the children’s schooling and parenting, the court simply stated that it would not address them given that they don’t have jurisdiction.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.