BC Court of Appeal reverses order for child's return to Brazil in Hague Convention dispute

The BC Court of Appeal has overturned a lower court's decision requiring the return of a six-year-old child to Brazil, resolving a contentious international custody dispute.

The case involved a child born in Brazil who had been living with his mother in Canada since October 2020. The child's father sought the child's return to Brazil under the Hague Convention on the Civil Aspects of International Child Abduction. The BC Supreme Court had ordered the child's return to Brazil, but the mother challenged this decision, arguing the trial judge had misjudged the child's habitual residence prior to the alleged wrongful retention.

The parties, both Brazilian citizens, had separated in 2018 after a brief marriage. Early in their separation, the Brazilian court granted the mother provisional custody of the child. Subsequently, the mother travelled with the child to Canada multiple times before receiving permission from the Brazilian courts to bring the child to Canada in October 2020 for study purposes. Their travel authorization expired on September 30, 2022, and the father claimed the child's retention in Canada became wrongful from October 1, 2022.

Despite continuing family court proceedings in Brazil, the BC Court of Appeal focused on determining whether the child had been wrongfully retained in Canada since October 2022. They declined to consider recent or forthcoming decisions from the Brazilian courts, instead relying on evidence available to the original trial judge.

The trial judge had adopted a two-stage analysis to determine the wrongful retention date and the child’s habitual residence. Initially, the court agreed with the father that the travel authorization, which expired on September 30, 2022, clearly marked the beginning of wrongful retention. The mother contested this interpretation, arguing that the child had effectively started a new life in Canada, which should have influenced the determination of habitual residence.

Delving into the habitual residence analysis, the trial judge considered factors such as the child’s connections to Brazil, the intentions behind the mother’s move to Canada, and the child’s life in Canada since 2020. Despite noting the child's ongoing life in Canada, the judge emphasized historical ties and the father's lack of consent for the extended stay as key factors that supported a Brazilian habitual residence.

However, the appeal court found that the trial judge had overemphasized parental intentions and historical connections to Brazil while insufficiently considering the child’s well-established life in Canada. The appeal judge critiqued the lower court’s application of the hybrid approach to determining habitual residence, suggesting an over-reliance on the temporary nature of the original travel authorization and insufficient acknowledgment of the mother’s primary caregiver role and the child’s integration into Canadian society.

The appellate court underscored that the focus should remain on the child's life circumstances immediately before the retention date, not historical connections. By doing so, the court determined that the focal point of the child's life was indeed in Canada at the critical time, leading to the reversal of the initial order for the child’s return to Brazil.