Summary

Keywords

Family law — Custody — Hague Convention — Courts — Jurisdiction — Mother retaining child in Newfoundland without father’s consent following expiry of time-limited consensual stay — Did the majority decision err in its interpretation of the phrase “immediately before wrongful removal or retention” in Article 3 of the Convention? – Did the majority decision err by incorporating the “best interests of the child” analysis in the determination of habitual residence, in violation of Article 1 and Article 16 of the Convention?

Summary

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The mother, K.F., was born and raised in Newfoundland but moved to the Boston area where she became an occupational therapist, employed by the Boston school board. She met J.F., the father, in 2009 and they married in 2011. The father is self-employed as a sales agent. The parties have one child, a daughter, V, who was born in 2014 in Boston. The parties lived and worked in the Boston area throughout their marriage and V attended daycare, pre-school and kindergarten there. Each year, K.F. would travel back to St. John’s with V to visit with her parents and extended family there at Christmas time and again for a few weeks each summer.

In the spring of 2020, the parties were both working remotely from home and V was attending school remotely as well. The mother obtained special permission for her and V to travel to Newfoundland and they arrived in St. John’s on July 25, 2020. As Boston schools were still closed in the fall of 2020, the parties agreed that K.F. and V should remain in St. John’s where V could attend Grade 1 in person. J.F. joined K.F. and V in St. John’s in November 2020 and stayed until March 2021in the home of the maternal grandparents. In April 2021, the Boston schools returned to in-person learning but the parties mutually decided that V should complete her school year in St. John’s. When the school year finished, the mother and V stayed in St. John’s for their usual summer visit. The father understood that they would return to Boston in mid-August. On July 30, 2021, the mother advised the father by telephone, that she would not be returning to Boston to live and that she had initiated divorce proceedings in Newfoundland. She was seeking joint parenting of V with V’s primary residence to be in St. John’s with the mother. The father brought a Hague Convention application, alleging that V had been wrongfully retained in St. John’s. The mother’s position was that V’s habitual residence had changed from Boston to St. John’s. The applications judge concluded that Boston was the child’s habitual residence and ordered that V be returned to Boston. This decision was overturned on appeal.

Lower Court Rulings