Ruling sees no palpable or overriding error in conclusion that Canada is kids' habitual residence
The Saskatchewan Court of Appeal dismissed an appeal of a denial of a father’s application for the return of his two children to Morocco under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
In Airir v Tamri, 2025 SKCA 41, the parties were from Morocco. They married in 2007, started residing together in Regina in 2009, had two children born in Canada in 2010 and 2016, and mostly lived together in a family home in Regina until the father flew to Morocco in September 2023.
The father stopped paying rent and expenses for the family home in November 2023. The mother and the children, who were Canadian citizens, stayed in the family home until they had to move to a new residence in Regina after eviction proceedings began.
The father applied to return the children to his care in Morocco under the Hague Convention sometime between November and December 2023. He also obtained a Moroccan divorce judgment granting him parenting time and giving the mother custody of the children.
In August 2024, a chambers judge of the Saskatchewan Court of King’s Bench denied the father’s application for relief. The unfavourable decision prompted him to appeal.
The Court of Appeal for Saskatchewan dismissed the appeal and awarded the mother costs of $2,500, payable to the Legal Aid Commission. The appeal court saw no palpable and overriding factual errors on the chambers judge’s part.
First, the appeal court acknowledged that the judge made a palpable factual error relating to the timeframe for how long the father intended to continue working in Regina. The judge concluded that the father’s departure in September 2023 was sudden and inconsistent with his stated intention to work in Regina for two to three more years.
The appeal court said this conclusion contradicted the judge’s earlier finding that the parties agreed in 2021 that the mother and the children would stay in Morocco while the father would keep working in Regina for another two to three years.
However, the appeal court said this error was not overriding and did not affect the case’s core. The appeal court noted that the judge relied on other uncontroverted evidence to conclude that the children were habitually resident in Canada.
Specifically, this evidence showed that:
The appeal court added that the judge reasonably found that the father made the choice to leave Regina alone and departed suddenly in September 2023.
Next, the appeal court ruled that the judge committed no legal error in his determination that the children’s habitual residence was in Canada for the purposes of art. 3(a) of the Convention. The appeal court held that the judge correctly concluded the case failed to meet the requirement of that provision.
The appeal court saw no errors in the judge’s doing the following as part of his habitual residence inquiry:
