A.J.L. v. J.G.L.

2022 BCSC 1344 A.J.L. v. J.G.L.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.J.L. v. J.G.L., 2022 BCSC 1344 Date: 20220809 Docket: E127877 Registry: Kelowna Between: A.J.L. Claimant And J.G.L. Respondent Before: The Honourable Mr. Justice Hori Reasons for Judgment Counsel for the Claimant: J. Chalkley Counsel for the Respondent: M. Sinclair Written Submissions Filed by the Respondent: Kelowna, B.C. June 30, 2022 Written Submissions Filed by the Claimant: Kelowna, B.C. July 12, 2022 Place and Date of Judgment: Kelowna, B.C. August 09, 2022 Overview.. 2 Background Facts. 3 Does the Relocation Order Preserve Jurisdiction?. 5 Section 6.3 of the DA. 7 Habitual Residence. 8 Where is B.'s "habitual residence"?. 11 Conclusions. 12 Potential Resolution to Issues. 13 Costs. 14 Overview [1] The parties in this family law case were before me in June and October 2021 to determine the parenting arrangements for B., the sole child of the marriage. At trial, the claimant sought approval to relocate with B. to Boolaroo, New South Wales, Australia. The respondent opposed the relocation. [2] On December 14, 2021, I authorized the claimant to relocate with B. to Boolaroo, New South Wales, Australia. The claimant and B. have since relocated to Australia. [3] Issues have now arisen between the parties over parenting time. The question in this application is whether this court retains jurisdiction to make parenting orders

in respect of B. despite the relocation. [4] For the reasons that follow, I find that this court did not retain jurisdiction over B. by virtue of the wording in the relocation order made December 14, 2021. I further find that B. is no longer habitually resident in Canada. As a result, this court does not retain jurisdiction to make parenting orders in respect of B. except in the exceptional circumstances described in s. 6.3 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [DA]. Background Facts [5] The parties were married on March 3, 2017, and separated on May 24, 2020. There is one child of the marriage, B., who was born in Toronto, Ontario in July 2017. [6] In her amended notice of family claim, the claimant sought: a) a divorce in accordance with the provisions of the DA; and b) an order with respect to parenting arrangements for B. pursuant to the Family Law Act, S.B.C. 2011, c. 25 [FLA], including an order allowing her to relocate with B. to New South Wales, Australia. [7] In his response to family claim, the respondent specifically opposed the claimant's application to move with B. to Australia and in his amended counterclaim he sought: a) a divorce pursuant to the DA; and b) an order with respect to parenting arrangements for B. pursuant to both the DA and the FLA. [8] The trial of this action was bifurcated. The first part of the bifurcated trial was heard by me in

June and October 2021. The purpose of this trial was to decide the parenting arrangements for B., including the claimant's application to relocate with B. to Australia. The decision on the first trial was issued on December 14, 2021. [9] The second part of the bifurcated trial will decide the remaining issues, including child support, spousal support, and property division. [10] On December 14, 2021, I authorized the relocation of B. to Australia with the claimant pursuant to s. 16.91(1)(a) of the DA. In particular, I made the following orders relating to B.'s relocation (the "Relocation Order"): a) Pursuant to s. 16.91(1)(a) of the DA the claimant is authorized to relocate with [B.] to Boolaroo, New South Wales, Australia; b) In the event that the respondent also relocates to Boolaroo, New South Wales, Australia, or the claimant chooses not to relocate, the parties will share parenting time with [B.] equally on a 2/2/3 schedule; c) In the event that the respondent does not relocate to Australia, [B.]'s primary residence will be with the claimant and the respondent will have: i. reasonable and generous in-person parenting time with [B.] in British Columbia and Australia as agreed upon by the parties or as further ordered by this Court; ii. video or telephone parenting time with [B.] at least three times per week on the days and times agreed upon by the parties or as further

ordered by this Court; iii. video or telephone parenting time with [B.] on: 1) Father's Day; 2) B.'s birthday; 3) the respondent's birthday; and 4) Christmas Day. d) The payment of the travel costs incurred to exercise or facilitate the respondent's in-person parenting time is referred to the trial of the financial issues; and e) The parties both remain [B.]'s guardians under s. 39 of the FLA. [11] On December 15, 2021, the respondent filed a notice of appeal of the Relocation Order. The appeal proceedings are ongoing. [12] On or around December 21, 2021, the claimant and B. relocated to Australia. They have resided in Australia continuously since that time. [13] The respondent applies for a declaration that this court retains jurisdiction to make parenting orders in respect of B. [14] In her response to the application, the claimant takes no position with respect to jurisdiction. However, in the event this court determines it does not retain jurisdiction to make parenting orders with respect to B., the claimant proposes that the court provide a non-binding opinion with respect to those issues, pursuant to Rules 7-1(15)(o) and 7-2 of the Supreme Court Family Rules, B.C. Reg. 169/2009 [Family Rules]. Does the Relocation Order Preserve Jurisdiction? [15] The first question to address is whether the Relocation Order preserves the jurisdiction of this court to make parenting orders

with respect to B. [16] The respondent submits that this court has preserved jurisdiction over matters of parenting time by granting the respondent : reasonable and generous in-person parenting time with [B] as agreed upon by the parties or as further ordered by this Court" [Emphasis added.] [17] I am assisted on this issue by the decision in Kean v. Cripple, 2006 NLUFC 35. In Kean, the parties were married in Florida, USA, and had one child of the marriage. The parties were divorced in Florida and the divorce order granted the mother custody of the child. The mother later remarried a Canadian who was living in Florida at the time. [18] In 2002, the Circuit Court of Escambia County, Florida, made an order permitting the mother to relocate with the child to Canada. The order permitting the relocation expressly stipulated that the County Court of Escambia County "has continuing jurisdiction over" the child and that the court "reserves jurisdiction to enforce" the order: Kean at para. 19. [19] The mother and child relocated to Canada in 2002. In late May or early June 2005, the mother wrote to the Florida Court advising that she no longer recognized the jurisdiction of the Florida Court as the proper court to deal with issues of custody and access. [20] Following the mother's declaration that she no longer recognized the Florida Court's jurisdiction, the father filed a without

notice application in the Florida Court. As a result of that application, the Florida Court issued an order reversing its 2002 order and granting the father custody of the child. [21] The mother applied to the Newfoundland and Labrador Unified Family Court for an order for custody of the child in the province of Newfoundland and Labrador. [22] After reviewing the provisions of the Florida Court order, Justice Dunn held that the child was habitually resident in Newfoundland and ultimately concluded that the Florida Court did not have jurisdiction over the child once the child had relocated to Newfoundland and was habitually resident there: [23] [the child] was initially brought to Newfoundland with the consent of both the Florida Court and his father. In essence, and perhaps without realizing the ultimate effect such an order could have, the Court and father were allowing [the child] to take up "habitual residence" in Newfoundland and Labrador. As time elapsed, and should a dispute develop between the parents, it was inevitable the spirit of the Florida Court's order would clash with the statutory and common law on the definition of "habitual residence" in Canada and elsewhere, as reflected by the Hague Convention. [ ] [28] As is clear, in law, residency is not a product of the length of time a child resides in a jurisdiction but, rather, of the settled intention of the family

unit, the existing custody arrangement and the views of the child, where appropriate [29] The Florida Court, in its final judgment of August, 2002 retained continuing jurisdiction over the parties on all issues concerning the child despite acceding to [the mother's] relocation request as set out in the order. [ ] [33] The Florida Court, in reversing custody without objectively attempting to ascertain which Court appropriately had jurisdiction over the custody and access of [the child], in effect set up a scenario similar to what had occurred in the Thompson case and as set out in the quote above. I conclude the Florida Court cannot make wrongful something that it had acceded to years previously and without properly addressing its mind to the jurisdictional issues raised by the style of its 2002 judgment. [34] Based on the evolution of this matter, I am satisfied [the child], is habitually resident in the province of Newfoundland and Labrador. I am also of the view the child is in the province with the express consent of the Florida Court in accordance with the 2002 final judgment of Judge Williams in Pensacola, Escambia County, Florida on July 31, 2002. [35] I reject the applicability of the order in the summer of 2005 reversing custody in that the common law and the Hague Convention (although not pleaded here), recognize the appropriate jurisdiction for hearing such a matter

is the jurisdiction in which the child "habitually" resides [Emphasis added.] [23] Justice Dunn went on to emphasize that "a foreign court should have serious reservations over retaining jurisdiction when allowing a custodial or any parent to remove a child, for purposes of taking up residence, in another country or jurisdiction": Kean at para. 37. [24] In my view, this court is in the same position as the Florida Court in Kean. The wording of the provisions in the Florida Court's relocation order which asserted continuing jurisdiction over the child were significantly more express than the wording in the Relocation Order at issue here. [25] Relying on the decision in Kean, I find that where a court has authorized a child to relocate to another country, that court cannot retain jurisdiction over a child who has become habitually resident in the other country. [26] In my view, regardless of the wording in the Relocation Order, the jurisdiction best placed to adjudicate on parenting issues with respect to B. is the jurisdiction in which B. is habitually resident. Therefore, I decline to find that this court retained jurisdiction over B. simply by virtue of the wording in the Relocation Order. Section 6.3 of the DA [27] The reasoning in Kean is consistent with the court's jurisdiction as prescribed by the DA. The court's jurisdiction in matters relating to divorce proceedings is

defined by ss. 3-7 of the DA. The relevant provision in this application is s. 6.3 which provides: Child habitually resident outside Canada 6.3(1) If a child of the marriage is not habitually resident in Canada, a court in the province that would otherwise have jurisdiction under sections 3 to 5 to make a parenting order or contact order, or a variation order in respect of such an order has jurisdiction to do so only in exceptional circumstances and if the child is present in the province. Exceptional circumstances (2) In determining whether there are exceptional circumstances, the court shall consider all relevant factors, including (a) whether there is a sufficient connection between the child and the province; (b) the urgency of the situation; (c) the importance of avoiding a multiplicity of proceedings and inconsistent decisions; and (d) the importance of discouraging child abduction. [28] I am aware of only two cases which address the application of s. 6.3 of the DA. They are Iron v. Zagorodnyaya, 2022 ABQB 323, and Droit de la Famille - 211534, 2021 QCCS 3366. However, neither of these cases address the application of s. 6.3 in the context of a court-approved relocation. [29] In both Iron and Droit de la Famille, the courts held that the children had taken up residence in countries other than Canada with the agreement of both parents. When one of the parents later sought

parenting orders in Canada, the Alberta Court of Queen's Bench in Iron and the Quebec Superior Court in Droit de la Famille declined jurisdiction citing s. 6.3 of the DA. In both cases the courts held that s. 6.3 of the DA conferred jurisdiction on provincial superior courts to make or vary a parenting order or contact order in respect of children of the marriage who are not habitually resident in Canada only in exceptional circumstances and only if the child is present in the province in which the application is made. Habitual Residence [30] Since there are no exceptional circumstances alleged, pursuant to s. 6.3 of the DA, this court has jurisdiction to make parenting orders with respect to B. only if B. is habitually resident in Canada. [31] The Supreme Court of Canada in Office of the Children's Lawyer v. Balev, 2018 SCC 16 [Balev] considered the concept of habitual residence in the context of the Hague Convention and the parental abduction of children across international borders. The Court noted that habitual residence was not defined by the Hague Convention but was central to the question of whether a child had been wrongfully removed or retained. [32] In Balev, the Court was presented with the following three approaches to deciding the habitual residence of a child: a) The parental intention approach in which the intentions of the parents determines the habitual

residence of the child; b) The child-centred approach which determines the child's habitual residence by the child's acclimatization in a given country; and c) The hybrid approach where habitual residence is determined by looking at all relevant considerations. [33] The Court held that the hybrid approach is the approach that should be applied in Canada when determining habitual residence under the Hague Convention. [34] While Balev dealt specifically with habitual residence under the Hague Convention, I see no reason to not apply the hybrid approach to the question of habitual residence under s. 6.3 of the DA. The reasoning of the Court in Balev has similarities to the considerations applicable under the DA in that it recognizes the interests of the child while allowing the intentions of the parents to be considered. The Court favoured the hybrid approach partly for the following reasons which are in keeping with the purposes of the parenting provisions of the DA: a) The hybrid approach favours choosing the most appropriate forum and focuses on the factual connections between the child and the countries in question: Balev at para. 64; b) The hybrid approach best protects children from the harmful effects of wrongful removal or retention: Balev at para. 65; c) The hybrid approach recognizes that the child is the focus of the analysis, but acknowledges that it may be necessary

to consider parental intention in order to properly assess the child's connections to a country: Balev at para. 68. [35] In the following passage from Iron, Justice Bourque accepts that the meaning of habitual residence established by the Supreme Court of Canada in Balev as being applicable to s. 6.3 of the DA: [36] The meaning of habitual residence in Canada has been explained in Balev, and it favours the "hybrid approach" to determining habitual residence. The terms "habitual residence" or "habitually resident" did not appear in the Divorce Act prior to the 2019 amendments. Instead, the legislation referred to "ordinarily resident". Undoubtedly, by using the expressions "habitually resident" and "habitual residence", Parliament intended for their meaning for purposes of the Divorce Act to align with the meaning given for purposes of the Hague Convention. In other words, the meaning of habitual residence flowing from Balev and subsequent jurisprudence is equally applicable to the concept of "habitual residence" in non-Hague Convention cases. [36] The hybrid approach to determine a child's habitual residence allows the court to consider all relevant factors to determine the focal point of the child's life: Balev at paras. 42-43. The considerations may include: a) The child's links to and circumstances in country A: Balev at para. 43; b) The circumstances of the child's move

from country A to country B: Balev at para. 43; c) The child's links to and circumstances in country B: Balev at para. 43. [37] In assessing the child's links to and circumstances in country A and B, the court may consider the following factors: Balev at paras. 44-45: a) The child's nationality; b) The duration, regularity, conditions and reasons for the child's stay in the country that the child is presently in; and c) The circumstances and intentions of the child's parents. Where is B.'s "habitual residence"? [38] In my view, once the claimant moved with B. to Australia with the court's authorization, B.'s country of habitual residence changed from Canada to Australia. From that point, the focal point of B.s life became Australia. [39] I have considered that B. was born in Canada and lived in Canada until he moved to Australia with his mother in December 2021. I also recognize that so long as the respondent and his family reside in Canada, B. will have ties and links to family in Canada. [40] However, so long as the claimant resides in Australia, B. will have the same ties and links to family in that country. [41] The length of time a child resides in a jurisdiction is not the sole factor in deciding where the child habitually resides. Habitual residence is decided by an assessment of a number of factors as set out in Balev. [42] In this case, the factors that tip the scale

toward B.'s habitual residence being in Australia are: a) The Court authorized the relocation of B. to Australia after considering the bests interests of the child; b) The claimant was the primary caregiver for B. prior to the parties' separation; c) Due to B.'s young age, the residence of his primary caregiver has particular importance; d) The claimant was educated and worked as a teacher in Australia before she moved to Canada. The claimant found it difficult to find work as a teacher in Canada. Her intention in moving back to Australia was to return to teaching; and e) There is no evidence that the claimant plans to return to Canada any time soon. [43] In Johansson v. Janssen, 2021 BCCA 190, the Court of Appeal held that it is possible for a child to have more than one habitual residence. In that case, Justice Bennett held: [27] The chambers judge concluded that the children had two habitual residences: Germany and British Columbia. The law recognizes that a child can have two habitual residences, however, it is usually in the context of where parents have joint parenting rights, and the child spends equivalent time in two jurisdictions: see M.M. v. S.T., 2014 ABCA 120 at para. 16 [Emphasis added.] [44] In B.'s case, there is no evidence that he spends equivalent time in both Australia and Canada. Therefore, I am not able to conclude that B. is habitually resident in both

countries. [45] Since B. is no longer habitually resident in British Columbia, s. 6.3 of the DA dictates that this court does not have jurisdiction to make parenting orders in respect of B. except when B. is present in British Columbia and where there are exceptional circumstances. Conclusions [46] I find that this court did not retain jurisdiction over parenting matters with respect to B. by virtue of the wording in the Relocation Order. [47] I find that B. is no longer habitually resident in Canada. As a result, pursuant to s. 6.3 of the DA, this court does not have jurisdiction to make parenting orders in respect of B. except when B. is present in British Columbia and there are exceptional circumstances. Potential Resolution to Issues [48] If this court does not have jurisdiction to make parenting orders, the claimant proposes that I receive written submissions on the parenting issues and provide the parties with a non-binding opinion on the probable outcome. I am not prepared to do so in the context of this case. [49] In my reasons of December 14, 2021, I noted at para. 134: [134] The proposed final orders submitted by both the claimant and the respondent include provisions for the appointment of a parenting coordinator. However, neither party made submissions on this point. Therefore, I will not make an order for the appointment of a parenting coordinator. However, the

parties have leave to make submissions on this issue if necessary. [50] Neither party sought to make further submissions on the appointment of a parenting coordinator. A parenting coordinator may be a method to resolve parenting issues now and in the future. [51] If the parties cannot resolve their parenting issues through the appointment of a parenting coordinator or otherwise, pursuant to Rule 7-1(9) of the Family Rules, I direct that a judicial case conference be held before me. The conference will be conducted by video through the MS Teams platform. Either party may file and serve the notice of judicial case conference. [52] There will not be a need to file any financial documents for the conference. The judicial case conference will explore the appointment of a parenting coordinator and will consider resolutions to the parenting issues. [53] The parties will exchange their positions on these issues in writing at least seven days before the judicial case conference. Costs [54] The respondent seeks costs of the application if it is opposed. The claimant took no position on the jurisdiction application. Therefore, there will be no order for costs. "D.K. Hori J." HORI J.