Conversely, other circles focused on the “acclimatization” of the child, rather than parental intention. [22] The acclimatization approach requires a court to look back and consider school activities, social engagement, participation in sports programs, and the child`s meaningful connection to the people and places of the new country. [23] Both Thomas and Alito JJ. agreed in the majority`s findings that the habitual residence standard is a fact-based inquiry that requires the courts to consider the unique circumstances of each case. Thomas J. decided the case primarily on the clear meaning of the text of the contract. Alito J. wrote separately and characterized the notion of habitual residence as a matter that was not purely factual and characterized the standard of review as an abuse of authority and not a manifest error. A parent left behind in the country requesting the return of his or her child must prove, on a preponderance of evidence, that his or her child was unlawfully removed from habitual residence or retained within the meaning of the Convention. [9] To appear, the parent must prove that their child ordinarily resided abroad immediately prior to the date of the alleged wrongful removal or retention of return. the transfer or detention violated custody under the law of the foreign state; and the parent left behind was in custody at the time of the alleged wrongful removal or non-return.
[10] In Medhurst v. Markle (1995) 26 O.R. (3d) 178 (OGD), the judge noted that the parents had moved from Canada to Germany to live indefinitely, rather than as tourists or for vacations. As a result, the parents generally became resident in Germany, as did their daughter, who was born in Germany in December 1994. The fact that the mother may have had the father`s permission to bring the child to Canada in February 2005 to visit the father`s mother did not give her the right to change the child`s habitual residence when she decided to separate from the father and remain in Canada. The father appealed. On appeal, Jenkins J. noted that the trial judge had used the definition of “habitual residence” in subsection 22(2) of the CRRA to determine the child`s habitual residence under the Convention. Jenkins J. rejected the father`s argument that this was inappropriate, since it is the principles of international law, not domestic law, that determine the interpretation of treaties incorporated into domestic law [81]. Jenkins J.
found that, since the Agreement had been incorporated into the LRRA, it was part of the custody of Ontario and that the same definition under the Convention as in subsection 22(2) of the CRTA applied, noting that the SCC appeared to recognize this in Thomson v. Thomson. Since habitual residence is a factual criterion, it cannot be a purely legal concept and there are different views on the factual situations it is intended to designate. Some authors consider that the only criterion according to which the criterion of habitual residence should be purely objective by seeking evidence of physical presence over a considerable period of time. Others argue that the criterion should be both objective and subjective elements: the fact or physical presence in a particular place and the animosity of staying there. In Re J. (A minor) (Abduction: custody) [30] the English Court of Appeal had held that a custodial parent may change a child`s habitual residence by changing his or her own habitual residence if no one else has the right to exercise parental authority (as was the case here, where an unmarried father had no rights as in Re S.), .) However, this would not happen if both parents were legally entitled to exercise parental authority, even if one of the parents had been granted “custody”. The House of Lords dismissed the father`s appeal on the grounds that the mother had not wrongly abducted the child under the Convention, since no one other than the mother had parental or custody rights. One of the legal rights of custody of the mother was to decide where the child would live. Again, I would argue that the common law courts in Canada would not allow a custodial parent to unilaterally change a child`s habitual residence if another person would have the right to exercise parental authority over the child, unless the relevant legislation provides for the right to change the child`s home without consent or acquiescence.
In Monasky v. Taglieri, SCOTUS seized the opportunity to define “habitual residence” and promulgated for the first time a uniform legal norm. The decision changes the course of jurisprudence of the U.S. Hague Convention on this issue. In Manitoba, there may be problems equating habitual residence with habitual residence, as the Domicile and Habitual Residence Act[41] treats habitual residence and domicile as identical concepts, and everyone agrees that domicile is different from habitual residence at different levels. In contrast, the English and Scottish Law Commissions [42] have recommended that habitual residence should not replace domicile as a general connecting factor, since the State of habitual residence is not developed as a legal concept in common law systems. Unfortunately, I have not found any cases in Manitoba that shed light on how domicile, habitual residence and habitual residence can be reconciled under the law. In Chan v. Chow 2001 BCCA 276 (BCCA), the British Columbia Court of Appeal considered the notion of “habitual residence” of a child under subsection 44(2)(3) of the Family Relations Act[49] and the Hague Convention and, in particular, whether the definition of “habitual residence” at para.