The court affirmed that the child's habitual residence is British Columbia
The BC Supreme Court dismissed a father's application to return his child to Hong Kong under the Hague Convention, ruling that the child's habitual residence is British Columbia and that the court has jurisdiction over the related family law claims.
The case involves a child, “M,” born in February 2009, who lived in Hong Kong with both parents until August 2020. At that time, the mother and M moved to Vancouver, which the father claimed was a temporary relocation due to COVID-19 restrictions in Hong Kong. He stated that the plan was for them to return to Hong Kong by August 2023. When they did not return, he filed an application, seeking M's return under the Hague Convention and challenging the jurisdiction of the BC Supreme Court over the mother’s family law claims.
The mother opposed the father's application, arguing that the move to Vancouver was intended to be permanent and that Vancouver was now M's habitual residence. She also contended that the father had submitted to the jurisdiction of the BC court and that it was the appropriate forum for resolving their disputes.
The court reviewed the facts and found significant disputes between the parties. The father, a Canadian citizen, and the mother, a Hong Kong citizen with no immigration status in Canada, met in Vancouver in 2001 and married there in 2003. They divorced in 2005 but continued their relationship, marrying again in 2010.
M lived with his parents in Hong Kong from his birth until 2012 or 2013 and again from 2014 until his move to Vancouver in 2020. During the COVID-19 pandemic, M and his mother relocated to Vancouver, with the father visiting occasionally. The father asserted this move was temporary, while the mother claimed it was permanent to facilitate M's education in Vancouver.
The Supreme Court found the father's evidence more credible, determining that the 2020 move was intended to be temporary. However, the court noted that M had deepened his roots in Vancouver over the three years since the move, developing friendships and participating in various activities. The court also considered M's preference to stay in Canada.
Based on these findings, the court concluded that M's habitual residence was British Columbia as of August 15, 2023, when the father alleged wrongful retention. Consequently, the Hague Convention did not apply, and M would not be returned to Hong Kong. Furthermore, the court found that even if Hong Kong had been M's habitual residence, M.'s objections to returning, given his age and maturity, would have been sufficient to refuse the father's application.
In terms of jurisdiction, the court ruled that it had authority over the family law claims, including child support, spousal support, and property division. The court found no compelling reason to defer to the Hong Kong courts, emphasizing the importance of addressing spousal support and property division together in one jurisdiction to avoid potential injustice.
The BC Supreme Court dismissed the father's application, directing that the family law matters would proceed in British Columbia.
