Consent of both parents not required to change child's habitual residence: court

The B.C. Supreme Court recently refused an Indonesian father’s petition to declare that his daughter had been wrongfully retained by her mother in Canada.

In A.I.P. v. K.B. 2022 BCSC 54, the parties were married in Bali, Indonesia. They have a daughter who resided with them in Bali for the first three years of her life. The relationship between the parties eventually ended in divorce. After the separation, the mother, a Canadian citizen, moved with the child to British Columbia.

The Indonesian father alleged that his daughter has been wrongfully retained by the mother in B.C. and he sought for a declaration that the child is a habitual resident of Indonesia. While the father admitted that he consented to the mother taking the child to B.C. because of concern about the COVID-19 global pandemic, his consent was temporary and has already been expressly withdrawn.

Under the Family Law Act, an order in relation to the wrongful removal or retention of a child requires the court to first determine the habitual residence of the child. In addition, the act only allows the guardian to consent to a change of habitual residence, rather than permitting both parents to consent to the change.

In this case, the court found that the Indonesian court granted the mother sole custody or guardianship of the child, including the authority to decide where the child will live. The court said that the father’s consent was not necessary before the mother can change the child’s habitual residence.

In addition, the court observed that jurisprudence has established the rule that a child’s habitual residence is tied to the habitual residence of his or her custodian. The court found that because the mother has a settled intention to change her habitual residence from Bali to B.C., the child’s habitual residence has also changed to B.C. The court concluded that the child is not being wrongfully retained in B.C.