Factual Background
In Farsi v. Da Rocha, the child was born in April 2018 and lived with her parents in Toronto. The child is a Canadian citizen. Her mother is a citizen of France, and her father is a citizen of Portugal. The parties had a somewhat volatile relationship.
In October 2018, the mother took the child to France for a two week trip with the father's consent. When she arrived in France, she messaged the father and informed him that she did not intend to return with the child and that the relationship was over. The father immediately brought a Hague Application seeking the return of the child to Canada.
In February 2019, the mother agreed to have the child returned to the father's care. The father traveled to France and brought the child back to Canada. The mother signed a travel consent permitting the trip and did not stipulate a return date, nor did she mention that the child is to be returned to France at a later date.
In March 2019, the father withdrew his Hague Application and informed the mother that he would be seeking custody of the child in Ontario. The mother brought a Hague Application in response, alleging that the father wrongfully removed the child from France.
Legal Analysis
The key issue in this case is the habitual residence of the child and whether that is France or Canada. If it is Canada, then there was no wrongful removal of the child when the father brought the child to Canada from France.
The first stage of a Hague Convention analysis is to determine the habitual residence of the child using the hybrid approach as set out in The Office of the Children's Lawyer v. Balev. Under this approach, the court must consider the entirety of the child's situation.
Specifically, the following considerations are relevant:
- The focal point of the child's life, "the family and social environment in which its life has developed," immediately prior to the removal or retention;
- The "duration, regularity, conditions and reasons for the child's stay";
- Considerations may vary with the child's age, for example, the environment of a young child is essentially a family environment, determined by the persons with whom the child lives and by whom the child is looked after;
- The circumstances of the parents, including their intentions;
- The actions of one parent may unilaterally change the habitual residence of a child; and
- Other factors may include actual and intended length of stay, purpose of stay, strength of ties to the competing jurisdictions, living and schooling arrangements, and cultural, social and economic integration.
Based on the child's entire circumstances, the court found that the child resides in Canada. Prior to the child's relocation to France, the parties took steps to obtain permanent residency and exhibited a shared intention to stay in Canada with the child. Both parties cared for the child and made parenting decisions jointly.
The focal point of the child's life was in Canada. While the mother unilaterally took the child to France and acted as a sole parent during a four-month period, this did not change the child's residence as the father did not consent to the relocation.
Since the mother wrongfully retained the child in France for four months, the return of the child to her habitual residence of Canada was not wrongful. Therefore, the mother's Hague Application was dismissed as the legislation did not apply to the facts of this case.
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