This matter was brought through an out of the ordinary procedural method, in that neither party had commenced a court application prior to this motion. The parties were trying to determine where the children were habitually resident as the mother had moved from their matrimonial home in Bruce County to a home in Simcoe County in October of 2021. The reason this needed to be determined prior to bringing an application, is that parties must bring an application where the children are habitually resident. Although this move was done without explicit notice or consent of the father, it was noted that the father had requested that the mother move out of the matrimonial home. The father, however, knew that the mother did not have family in the Bruce County area but did have family in Orillia (Simcoe County), making it an implied assumption that she would likely move there with the children. The father was also aware that the mother’s grandmother had offered her a place to stay in Orillia for free. Based on this, the father ought to have known that the mother would have no other options than to move to Simcoe County. Justice Chown took this to mean that the father had provided his implied consent to the move.
According to Rule 5 of the Family Law Rules, a case which deals with parenting time must be started in the municipality where the child resides, except under section 22 of the Children’s Law Reform Act. In Justice Chown’s view, the children became habitually resident of Simcoe County when they moved there with the implied consent of the father, as mentioned above. The Children’s Law Reform Act at section 22 states the following:
A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
- With both parents.
- If 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.
- With a person other than a parent on a permanent basis for a significant period of time.
In this case, as Justice Chown found that the father had impliedly consented to the move based on the above, this clearly falls under 22(2). Justice Chown also notes that it could be possible for the definition of “habitually resides” under the Divorce Act, Family Law Act or Family Law Rules to be interpreted differently, however he noted that this would not be appropriate. One of the reasons being that the government (both federal and provincial) drafts legislation so that it is uniform and does not confuse the public with different meanings in different acts. The children were therefore found to be habitually resident in Simcoe County and either parent could bring their Application there.
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