The parties in this case were married in Turkey on September 21, 1995. They moved to Canada in 2006 and resided in Oakville, Ontario. They separated in 2008 and two motions were brought before the court.
The Applicant Mother was seeking an order for custody of the child of the marriage, namely, Onur Anamur, and the Respondent Father brought a motion seeking custody of the child and further that the child be transferred to Turkey along with the hearing of the herein matter.
In November 2009, the Respondent Father commenced a legal proceeding in Turkey. The Applicant Mother was not served with the appropriate motion materials. The Turkish Court made an interim order awarding the Respondent Father with guardianship of the child. Subsequently, in December, 2009 the Respondent Father brought this Motion relying on The Hague Convention arguing that the child was wrongfully removed from Turkey and section 22 of the Children's Law Reform Act (CLRA), which provides the court with circumstances where an order regarding custody and access can be made.
Although the term 'habitual residence' is not defined in the Hague convention, the general principles to determine same are found in case law, (Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.) and Jackson v. Graczyk, 2007 CarswellOnt 3216). They are as follows:
- The question of habitual residence is a question of fact to be decided on all the circumstances;
- A person’s habitual residence is the place where that person resides for an appreciable period of time with a “settled intention” to do so;
- A “settled intention” is an intention to stay in a place, temporarily or permanently, for a particular purpose, such as employment or family; and
- A child’s habitual residence is tied to that of the child’s custodial parent.
The child was residing in Ontario with the consent of the Respondent Father for the purposes of bettering the child's life and education. The Respondent Father had sworn an affidavit in April, 2009, stating the following:
We immigrated to Canada on March 11th, 2006, but permanently moved to the province on December 11, 2006, hoping to give a better future our son, Onur.
The above further demonstrates the intention of the parties to reside in Ontario for the purpose of bettering the child's life. Therefore, the court found that the Hague Convention had no application in the herein matter.
Section 22 of the CLRA gives jurisdiction to the Ontario Court to make an Order regarding the custody and access of the child.
Subsection 22(2) of the Act defines habitual residence as follows:
(2) A child is habitually resident in the place where he or she resided,
(a) with both parents;
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
(c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.
Given that the child was living with the Respondent Mother in Oakville at the commencement of the application, the child was residing in Ontario for the purposes of section 22 of the CLRA.
The Applicant Mother's motion was allowed. An order was made for sole custody of the child to the Applicant Mother. The Respondent Father's motion was dismissed. The court did not recognize the order of the Turkish court as the Respondent Father had attorned to the jurisdiction of the Ontario Court.