Connection to previous residence, where father moved back to, was almost completely historical
The determination of a child’s habitual residence in a dispute between divorcing parents living in different cities should primarily focus on the child’s link to the competing jurisdictions, the Newfoundland and Labrador Court of Appeal has ruled.
In K.F. v. J.F., 2022 NLCA 33, the child, V, and her parents lived in Boston. In July 2020, the mother obtained special permission for V to visit St. John’s due to her father’s health crisis. The father later joined them in November 2020 since he was able to work remotely due to the pandemic.
They decided to stay in St. John’s while the Boston Public School System remained closed to in-person learning. However, V began elementary school in St. John’s when the parents learned that the city allowed in-person learning. They remained in St. John’s until March 2021, when the father returned to Boston for work.
In July 2021, the mother told the father that she and V would not return to Boston. She had filed for divorce and sought joint parenting of V with her primary residence to be in St. John’s. A month later, the father sought V’s return to Boston through a Hague Convention application. He alleged that V was wrongfully detained in St. John’s and that her habitual residence was in Boston.
The mother alleged that V’s habitual residence had changed to St. John’s and V would be subject to grave risk of harm if she was made to return.
The judge ordered V’s return to Boston, determining that V and her parents had maintained their connections to and had intended to remain residents of Boston. She also dismissed the mother’s claim that V was subject to grave risk of harm.
The mother successfully obtained a stay pending appeal. On appeal, the mother argued that the judge failed to recognize that V’s habitual residence changed because of her failure to focus on V’s family and social environment.
The appellate court agreed. While the judge correctly stated that a child’s links to competing jurisdictions determined habitual residence, her analysis focused more on the parents’ connections to Boston rather than V’s, said the court. The appellate court found that the judge failed to consider that V also made her own connections, such as attending school and making friends, and their weight in considering whether V’s habitual residence had changed.
After ruling that it was proper to decide the father’s Convention application, the appellate court found that V was not wrongfully detained in St. John’s. Balancing V’s links to both Boston and St. John’s, the appellate court concluded that V had adapted well to St. John’s, had made friends at school, and participated in extra-curricular activities. Meanwhile, her links to Boston were minimal and almost entirely historical, said the court.
The appellate court determined that the intention to return to Boston before the mother changed her mind did not alter the fact that V’s habitual residence changed to St. John’s.
