Case information

Family law — Custody — Habitual residence — Hague Convention — Infant found to be habitually resident in British Columbia immediately prior to removal or retention — Finding that Hague Convention does not apply — Whether Hague Convention applies — Infant too young to form attachments or have own will— Correct legal framework for determining infant’s habitual residence under Hague Convention — Whether American or U.K. jurisprudence inform Canadian approach to assessing parental intention and shared plans when determining habitual residence — Standard for admitting new evidence in expedited Hague Convention proceedings — Whether revised flexible standard for fresh evidence should be adopted for Hague Convention cases involving infants — Whether disproportionate weight given to physical presence over parental intent and connections abroad — Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 183 No. 35.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Mr. Zahariev and Ms. Zaharieva are the parents of an infant born in Canada shortly after Ms. Zaharieva moved to British Columbia from Bulgaria. Mr. Zahariev had agreed that the infant would be born in British Columbia, but said that they agreed that Ms. Zaharieva and the infant would return to Bulgaria no later than the end of September 2023. After the infant was born, the parents’ relationship deteriorated. Ms. Zaharieva refused to return to Bulgaria with the infant. After a Bulgarian court declined jurisdiction over the parents’ divorce based on the infant not being habitually resident in Bulgaria, Mr. Zahariev petitioned for a declaration that that the infant had been wrongfully retained in British Columbia and an order that the infant be returned to Bulgaria. The petition was brought pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (“1980 Hague Convention”), which is law in British Columbia pursuant to s. 80 of the Family Law Act, S.B.C. 2011, c. 25. Canada and Bulgaria are both contracting states under the 1980 Hague Convention.

Norell J. found that, immediately prior to September 30, 2023, the infant’s habitual residence was British Columbia. As a result, the 1980 Hague Convention did not apply, and she dismissed the petition. The Court of Appeal dismissed Mr. Zahariev’s appeal.