IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On April 19, 2019, A.H. left Victoria, where she and B.T. and their children had been living, and went to her parents’ home in Alberta. On April 25, 2019, B.T. obtained an ex parte order in this Court that provided for police assistance in returning the children to Victoria. As a result of this order, the children were apprehended for return to British Columbia on May 3, 2019.

[2]           A.H. takes the position that there is no jurisdiction in British Columbia to make any orders involving the children. She takes the position that the parties should be put back in the position they were in before the order returning the children to British Columbia, such that she would be free to return with the children to Alberta and any family orders would have to be sought in the Alberta or Saskatchewan Courts. She submits that the habitual residence of the children is Alberta.

[3]           B.T. submits that British Columbia is the habitual residence of the children and that this Court had and continues to have jurisdiction over the children.

[4]           Many of the facts in this matter are without dispute. Based on the evidence before me I find:

[5]           B.T. testified that A.H. had often expressed a desire to move away from Lloydminster. She had moved to [omitted for publication], had expressed an interest in moving to Yorkton, and an interest in moving to New Zealand. After she moved in with B.T. in early 2019, she suggested they move away together. B.T. agreed but on the condition that they move to Vancouver Island to be closer to his family. A.H. agreed and they then took steps to make that move.

[6]           A.H. testified that her intent was that they would stay in British Columbia if the reconciliation was working but return to Lloydminster if it failed. She testified that, although B.T. sold most of his furniture and personal belongings, she kept her furniture which was at her mother’s residence in Lloydminster. She testified that she considered returning to Lloydminster from the day after the family arrived in British Columbia. She testified that she didn’t look for work because she wanted to go back to Alberta.

[7]           On cross-examination, A.H. agreed that she did try and get work at a hair salon in British Columbia and that her testimony that she had never sought employment in British Columbia was not accurate. She was also confronted with a text exchange dated April 11, 2019 in which she indicated that it was her intention to get a mailbox in British Columbia, and an Instagram post that included an invitation to a friend to come and visit her in British Columbia.

[8]           Also relevant to her credibility, although not directly relevant to the jurisdictional issue, is an inaccuracy in A.H.’s affidavit dated May 14, 2019. In that affidavit, A.H. states that B.T. had an affair and left her in [omitted for publication], while she was in the late term of her pregnancy with their son. The next paragraph of the affidavit states that they reconciled in April 2015. Their son was born on [omitted for publication]. On cross-examination, A.H. acknowledged that the parties were together at the time their son was born and that her affidavit was inaccurate in this regard.

[9]           As a result of the changes in A.H.’s evidence and the inaccuracies revealed in cross-examination, where there is a difference between the evidence of A.H. and B.T., I accept the evidence of B.T. In particular, I find that the parties agreed to move to British Columbia prior to reconciling and that this intention continued after their reconciliation. I find that the intention was to move for an indefinite period and that A.H.’s intention changed only after she arrived in Lloydminster on April 20. This latter conclusion is based on A.H.’s own evidence that she intended to go to Lloydminster for the weekend but, once she arrived, changed her mind and decided not to return. As well as all of the other evidence, her secrecy and lack of communication with B.T. after her departure belies any suggestion that there was any joint intention that she return to Lloydminster.

[10]        Sections 72 through 74 of the Family Law Act address the issue of jurisdiction. Section 74(2)(a) confers jurisdiction if the child to whom the order relates is “habitually resident in British Columbia when the application is filed”. The applicable portion of section 72(2) states that “a child is habitually resident in the place where the child most recently resided with his or her parents”. Section 72(3) states that “the removal or withholding of a child without the consent of a guardian does not affect the child's habitual residence unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extraprovincial tribunal”.

[11]        Residence is not defined in the Family Law Act. In the recent decision of the British Columbia Supreme Court in Aslanimehr v. Hashemi, 2019 BCSC 804, the Court adopted the following definition of residence:

[12]        The Court in Aslanimehr v. Hashemi also made reference to Fasiang v. Fasiangova, 2008 BCSC 1339, where Justice Martinson provided a comprehensive review of the concepts of “settled intention” and “appreciable period of time”. Her review was also adopted in Kong. She held, in summary, at paragraphs 60 to 74:

[13]        Settled intention is a factual determination, and is specific to the facts of an individual case.

[14]        Justice Martinson also addressed the issue of appreciable time. She held, in summary, that appreciable time is a question of fact. It is not a fixed period. It can be as short as one day. She made reference to the decision of the Ontario Superior Court of Justice in Braatelien v. Horning, 2001 OJ No 3799, where it was found that habitual residence had been acquired after the children and their mother moved to a new location and remained for a few days.

[15]        In Rey v. Getta, 2013 BCCA 369, the British Columbia Court of Appeal made the following comments about habitual residence:

[16]        A number of the cases provided involved factual circumstances similar to those before me, in that they involved reconciliations and agreement to move for a fresh start.

[17]        In Braatelien v. Horning, the parties had lived and had children together in Hungary. Their relationship ended there but they then reconciled and agreed to come to Canada for a fresh start. The mother was reluctant to come but agreed as a condition of the reconciliation. They arrived in Canada on April 2, 1998 on a six month visitor’s visa. They separated on May 23, 1998. The Court concluded that the British Columbia Court should assume jurisdiction, based on a finding that the intent of the parties was to make Canada their permanent residence, despite the short duration of their residence in Canada and the fact that they had no official status in Canada.

[18]        In C.L.Z. v. C.G.Z., 2018 BCSC 2172, the parties planned to move from Saskatchewan to Kelowna for six months to see if they could reconcile their differences. If they did not reconcile their differences, they planned to return to Saskatchewan. After a few weeks in Kelowna the relationship became rocky and, four and a half months after the move, the father took the child back to Saskatchewan for a visit. While he was away, the mother ended the relationship. The Court found that the parties had a settled intention to reside in British Columbia for an indefinite period and concluded that the child was habitually resident in British Columbia. The Court stated:

[19]        I find, based on all of the evidence, that these parties had a settled intention to reside in British Columbia and that they resided here for an appreciable time. As a result, I conclude that their habitual residence is British Columbia. I base this conclusion on the following evidence:

[20]        The conclusion I have reached that the habitual residence of the children is British Columbia does not conclude the matter. I must still consider whether I should exercise my discretion under s. 74(3) of the Family Law Act to cede jurisdiction to Alberta or Saskatchewan on the basis that one of these jurisdictions is the more appropriate forum to determine the family law issues of this family.

[21]        Section 11(2) of the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) sets out the following circumstances that should be considered in determining whether to cede jurisdiction:

[22]        I find that the comparative convenience and expense for the parties and their witnesses does not strongly favour either jurisdiction. Although A.H.’s parents are in Alberta, and it would no doubt be more convenient for them if the proceedings were held there, B.T.’s family is in British Columbia, and the most current information regarding the children is in British Columbia. Although the children have only been residing in British Columbia for approximately five and a half months, that is a relatively significant period of time given their young age. Further, I am confident that arrangements can be made to allow the Alberta witnesses to provide affidavit evidence and/or testify by video to address any difficulties that arise as a result of their location.

[23]        With respect to factor (b) of the CJPTA, I note that, if British Columbia did not take jurisdiction, there would be some complexity in determining whether the correct forum and law to be applied is that of Alberta or Saskatchewan as B.T. resided continuously in Lloydminster, Saskatchewan but A.H. resided both in Lloydminster, Saskatchewan and [omitted for publication], Alberta and her current residence is with her parents in Lloydminster, Alberta. Although it is not for me to determine whether Alberta or Saskatchewan would be the proper jurisdiction, this complexity supports retaining jurisdiction in British Columbia so as to avoid further proceedings on jurisdictional issues.

[24]        I find factors (c), (d) and (e) of the CJPTA neutral.

[25]        In considering (f) of the CJPTA, the fair and efficient working of the Canadian legal system as a whole, the purposes set out in s. 73(a) of the Family Law Act are relevant, and may be determinative:

[26]        The first purpose under s. 73(a) is the best interests of the child. Section 37 and 38 set out the relevant factors. If I cede jurisdiction to Alberta, A.H. will, as I understand her intentions, take the children to the home of her parents, which is a different location than where they were residing prior to the move to British Columbia.

[27]        It is clear that both these parents love their children and have a strong relationship with them. They have both participated fully in their care throughout their lives. I find that their emotional well-being, aside from the issue of stability, can be satisfied in the care of either parent and that both parents have the ability to exercise parenting responsibilities.

[28]        Regarding violence in the relationship, both parties have made some allegations of violence by the other. I find that these parties have not behaved well towards each other and, undoubtedly, their behaviour has negatively impacted the children. However, I am unable to place the blame or responsibility for violence on one or the other such that this factor has an influence on my decision with respect to ceding jurisdiction.

[29]        I find, however, that the history of the care of these children and their need for stability favours retaining jurisdiction in British Columbia. As a result of moves by A.H., the children were moved, for her portion of their care, from Lloydminster to [omitted for publication] and then back to Lloydminster. They were then, as a result of the joint decision to move to British Columbia, moved again in March. A.H. then made a unilateral decision in April to move them to Alberta. They were then, as a result of the ex parte order in this Court moved back to British Columbia. I do not find that it would be in their best interests to move again back to Alberta.

[30]        I also have concerns about A.H.’s unilateral decision to retain the children without notice or communication in April. I do not believe it would be in the best interests of the children to support this behaviour as it is clearly important that these children have both parents in their lives. Mr. Nelson argued that there was no parenting arrangement in place at the time A.H. left British Columbia as the parties had only been apart for two days at that time. I do not accept this argument. It is clear that these parties had a long standing informal agreement to share the parenting of their children when they were apart and that agreement had continued on April 17 and 18. A.H. was in violation of this informal agreement at the time she left British Columbia.

[31]        Although the children lived the early part of their lives in Alberta, and they have only been in British Columbia a few months, they are young enough that the time they have spent in British Columbia is at least of equal, if not more, significance in considering their history. The province of their residence is of less significance than the familiarity of their surroundings. A move to Alberta, although a return to a province where they have spent more time, would not be a move to a location where they have ever lived before, and I find that it would not be in their best interests.

[32]        With respect to the appropriateness of an arrangement that would require the parents to cooperate, I find that this factor as well favours retaining jurisdiction in British Columbia. Given A.H.’s decision to return to Lloydminster without any discussion with B.T., and her lack of communication with him for over two weeks after that decision, I have concerns about her willingness to cooperate if the children were returned to Alberta or Saskatchewan.

[33]        On the basis of this analysis, I find that it would not be in the best interests of the children to cede jurisdiction to Alberta or Saskatchewan and, on the basis of this and the other CJPTA factors, I decline to do so.