Farsi v. Da Rocha
Court of Appeal for Canada – Ontario, 6 February 2020, 2020 ONCA 92
The habitual residence did not change to France, therefore there is no wrongfull retainment in Canada.
The mother, Faris, is a French citizen. She worked on a visa in Toronto and met Da Rocha, a Portuguese citizen with a permanent resident of Canada. They lived together and had a baby in April 2018. In July 2018 the mother went with the baby to French for a visit. In October 2018 the father took the baby to Toronto. In May 2019 the mother started a Hague Convention application. The request was refused by the father and the mother brought this application to the court.
The father and the mother had very different stories about the relocation to France and the relocation to Canada. The judge compared the stories with the facts, such as communication between the parties (showing the relationship had not yet ended when the mother went to France) and actions of the parties (such as looking for an appartment in Toronto). The judge concluded that:
- the mother did not prepare her relocation to France, but in stead had taken actions to obtain permanent status in Canada
- the father had consented to a two week trip to France
- the mother did not break up with the father when she left to France, but only in October 2018
- when the mother did not return and broke up the relationship, the father retained counsel immediately and started a Hague Convention application
- there was a ‘paucity of evidence’ of the baby’s life and circumstances during her time in France
- the mother gave the baby’s passport and signed a travel consent form before the father took the baby to Canada in February 2019
- when back in Toronto, the father informed the mother that he was seeking a custody order
- the mother came to Canada and filed an application order.
The judge found that until the move to France, the baby had his habitual residence in Canada. She found that the baby was wrongfully retained in France. In the 4 months that the baby was in France, his habitual residence did not change to France.
Jurisdiction to asses the first relocation
In her appeal the mother argued that the primary judge only had to determine whether the baby had been wrongfully removed or retained from France and that under the Hague Convention only the French court had jurisdiction to determine whether the baby was wrongfully retained in France.
The court and the Appeal Court refer to Balev. The judge had to determine the place of habitual residence at the end of February 2019, when he was taken to Canada. In determining the baby’s habtirual residence ‘immediately before’ the alleged wrongful removal on February 29, 2019, the hybrid approach in Balev required that she look at the ‘entirety’ of the baby’s situation, ‘unencumbered by rigid rules, formulas, or presumptions’. In this case the entirety of the baby’s situation includes her habitual residence on October 28, 2018 and the circumstances under which she remained in France after that date, according to the Appeal Court.
Unilaterally change the habitual residence
In her appeal the mother argued that the primary judge failed to recognize that Balev says that one parent can unilaterally chage a child’s habitual residence. The Appeal Court confirms that indead Balev found that ‘the actions of one parent may unilaterally change the habitural residence of a child’, but that that finder of fact has the task to ‘evaluate all the relevant circumstances in determining where the child was habitually resident at the date of wrongful removal or retention’.
In her appeal the mother argued that the judge had adopted the parental intention approach which Balev had largely overruled. The primary judge had said that parental intention is a relevant consideration under the Balev framework, ‘as is the purpose, nature and duration of consent to travel to and remain in a country’. The Appeal Court found that the primary judge had made no palpable and overriding error.
Habitual residence tied to that of the primary caregiver
In her appeal the mother argued that the judge had failed to recognize that the baby’s habitual residence was tied to her’s, as the primary caregiver. The Appeal Court considered that ‘the focal point of a child’s life ia based on ‘the family and social environment in which it’s life has developed’ (Balev, at para. 43). In Canada the baby was cared for by both parents, the paternal grandparents and the primary care physician in Toronto. The Appeal Court stated thats given the ‘paucity of evidence’ about the baby’s circumstances in the relevant period in France, the primary judge was unable to conclude that the baby’s habitual residence had changed to France.