Where do I live?

To those of you whose lives are not enmeshed in family law, the question of where someone lives probably seems straightforward. We live where we – well – live. Obviously.

Not in family law; and certainly not when the question is one of where the children live.

In order for a family court to have the authority (known in legalese as jurisdiction) to hear a case that involves child-related issues, the children must be habitually resident in that place. Here’s what Ontario’s Children’s Law Reform Act, section 22(2) says about habitual residence:

A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

            1. With both parents.

            2. 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.

            3. With a person other than a parent on a permanent basis for a significant period of time.

What does that mean?

In the majority of cases, the child’s habitual residence will be where they lived while the family was intact, as set out in the first circumstance. If one parent moves with the children from that location when the relationship ends, it is most likely that the case will still take place where the family had been living. (Moving with the children without a court order or the agreement of the other parent is frowned upon. A parent who does so may face a court order requiring that the children be returned to where they had lived before they were moved.)

There are exceptions to this; most notably, if the parent moves with the children for safety reasons. In those situations, the case may be heard in the new place where the parent and children are living or, even if the case has to be heard where the family lived before the move, the court may not order the children to be returned.

The second circumstance applies to situations where one parent moves with the children after separating from the other parent. If there is a court order, the parents have a separation agreement that stipulates this move can happen or the other parent has agreed to the move, then the new location becomes the children’s habitual residence. The same is true if the actions of the “left-behind” parent imply they don’t oppose or they consent to the move. For example, if one parent moves with the kids and the other parent doesn’t object or take any action to have them returned for several months, the new location may well be considered the children’s habitual residence.

The third circumstance describes situations where a child is cared for by someone other than the parents – perhaps the grandparents – for an extended time. In those cases, the child would be habitually resident where they lived with that caregiver, regardless of where their parent(s) lived.

It’s not simple

Even with this framework, determining a child’s habitual residence can be complicated, especially in an increasingly mobile world, where families have many reasons for moving around.

Think, for example, about a family that lived in Toronto for many years, then moved to Saskatoon. Two months after getting there, the parents separate, with one parent wanting to return, with the children, to Toronto. Is Saskatoon the habitual residence of the 15-year-old or is Toronto?  What if the child was six months old?

What if one parent is in the military, and the family moves every few years? Or, the family has gone to another country because one parent has a job there. Soon after arriving, the parents separate, with one of them wanting to return to Canada, as do the children. What’s their habitual residence?

What if one parent is duplicitous, saying they are taking the kids on vacation to visit their grandparents, but then announces they are leaving the other parent and the children won’t be returning? What if the parent does this because she is too afraid to tell her partner that she is ending the relationship until she is somewhere safe or because the family lives in a country where women can’t travel without their husband’s consent?

Courts consider many factors when trying to sort out the question of habitual residence. Family violence is one consideration; in particular, its impact on the kids and their safety if they were returned to the other parent/location.

Courts also look at the circumstances of the move. Was the family’s intention to remain in the new location? Did they sell the home where they used to live; get a doctor in the new location; register the children in school and activities; join a religious institution, and so on?  What did they tell friends and family about their move?

The ages of the children matter too. It’s hard to imagine that an infant has a habitual residence if they were born in one place, lived there for a few months and now has lived in a new place for a few months. On the other hand, a 15-year-old, who has lived their entire life in one location and in a new place for only a few months, might say the previous location was their habitual residence.

Next week, I’ll write about a recent Supreme Court of Canada decision, which will now guide all Canadian courts when they grapple with this issue. Happily, it’s a good decision.