The Meaning of "Ordinary Residence" and "Habitual Residence" in the Common Law Provinces in a Family Law Context

Residence, Habitual Residence, and Ordinary Residence in the Canadian Common Law Provinces (continued)

2. What does the term "habitual residence" mean?

(a) at common law

The term habitual residence was not a concept regularly used in the common law jurisdictions as a matter of judge made law. Its incorporation appears to come from continental European countries primarily through the Hague Conventions and Uniform Legislation Conferences. Its presence as a term of law in the common law provinces is legislative in nature.

In Adderson c. Adderson[24], Laycraft C.J.A. stated: "The term "habitual residence" seems to have come into Canadian law from the Hague Conventions adopted by the Hague Conference on Private International Law". Laycraft C.J.A. opined that the term was introduced, at least in part, "to avoid the rigid and arbitrary rules which have come to surround the concept of "domicile". While "domicile" is concerned with whether there is a future intention to live elsewhere, "habitual residence" involves only a present intention of residence. There is a weaker animus."

Although duration of residence is only one factor to be considered in deciding if a person is habitually resident in a place, it is unlikely that habitual residence can be acquired based upon a very brief period of residence, regardless of the person's intention since habitual residence implies a significant period of presence together with an intention to live in a place [25]. The English Court of Appeal [26] recently has emphasized that habitual residence is primarily a question of fact to be decided by reference to the circumstances of each particular case.

In Re S. (A Minor) (Custody: Habitual Residence)[27], the English House of Lords had to decide a two year old child's habitual residence to determine custody jurisdiction under the Family Law Act as well as whether the child had been wrongfully removed/retained from its habitual residence under the Hague Convention. The parents were never married so that under the applicable law at the time the father had no parental rights in respect of the child. It was common ground that prior to the mother's death, the child's habitual residence was that of his mother. The mother had lived in England with the father from 1990-1995 when she obtained a "custody" order. The mother and child stayed with the maternal grandmother in Ireland from 3-16 August 1995 on holiday. Thereafter, the mother stayed in England until 4 September when she traveled to Ireland with the intention of returning to England in January 1996. She went to England alone for a week in November 1995 and returned to England with the child on 16 January 1996 where she remained until she died on 10 March 1996. The grandmother returned the child to Ireland and obtained a "custody" order. The father meanwhile obtained a "custody" order in England and applied for the return of the child under the Hague Convention, which depended on whether the child was habitually resident in England at the time of the father's custody order. Everyone agreed that the mother was habitually resident in England at the time of her death. The issue was her habitual residence at the time of her death. Lord Slynn held that if the mother had lost her habitual residence in England when she went to Ireland (which was not discussed), she became habitually resident in England when she returned in January or at least by the time she died. That meant the child was habitually resident in England when his mother died and the issue then became whether the child was still habitually resident in England two days later when the judge awarded the father custody since the child had left England. The Court of Appeal had held that the death of the custodial mother did not immediately strip the child of his habitual residence acquired from her, while he remained in England. Nor did the fact the child was removed to another place by a non parent who did not have custodial rights change the child's habitual residence. However, the longer the child remained with the de facto caregiver without challenge, the more likely the child would acquire the habitual residence of those who continued to care for him. As an aside, this is consistent with the generally held view in the common law provinces that an infant's habitual residence is acquired from his or her custodial parents acting within their legal rights since the infant is too young to form any intention as to his or her future residence. The conclusion is also consistent with the proposition that one parent cannot unilaterally change a child's habitual residence without a court order or the consent/acquiescence of the other parent's with parental responsibility as well as emphasizing that "intention" is a central consideration in determining habitual residence in common law jurisdictions. It does however raise the prospect of a mature minor having authority to decide his or her habitual residence, which appears inconsistent with basic custody law in the common law provinces as explained in Gordon v. Goertz [28]. Lord Slynn also pointed out that if the mother had moved to Ireland with the intention of remaining there indefinitely, she could have established a habitual residence there in short time, as would the child since there was no one else with parental responsibilities in the case. That the child may have been an Irish national did not affect his habitual residence in the circumstances. As a result, the English court had jurisdiction to decide custody and once it did so the child's habitual residence became tied to the father's, which was also England. The House of Lords accepted that the child's habitual residence not only gave the English court jurisdiction to decide custody under the Family Law Act, it also provided the basis to conclude that the child was being wrongfully retained in Ireland outside its habitual residence (England) from a person entitled to custody rights (the father) within the meaning of the Convention and should be returned to England. That is, the court applied the same meaning to habitual residence under the Convention as it applied to determine jurisdiction under domestic custody law.

Lord Slynn also quoted with approval Lord Brandon's comments on "habitual residence" from In Re H. (Minors)(Abduction: Custody Rights)[29] to the effect that habitual residence is not defined in the Convention and should be given its natural and ordinary meaning, not treated as a term of art. Whether a person is habitually resident in a place is a question of fact not law. A person may cease to be habitually resident in a place in a single day if he or she leaves with a settled intention not to return but probably cannot become habitually resident in another place in a single day. Presence over an appreciable period of time and a settled intention to remain indefinitely are necessary to establish habitual residence. Finally, where a very young child is in the sole lawful custody of one parent, the child's habitual residence will necessarily be the same as the parents. In my opinion, the same principles apply in the common law provinces of Canada, subject to the caveat, which may not be apparent from Lord Brandon's comments, that because of the way relocation (mobility) law has evolved in the common law provinces, a custodial parent does not have a unilateral right to change the child's habitual residence without a court order or the consent/acquiescence of any other person entitled to exercise parental responsibility, in the absence of proof that the right to custody being exercised by the removing parent according to the child's then habitual residence carries with it a right to change the child's residence.

In Re J. (A Minor) (Abduction: Custody Rights)[30], the English Court of Appeal had held that a custodial parent could change a child's habitual residence by changing her own habitual residence if no one else was entitled to exercise parental authority (as was the case here where an unmarried father had no rights as in Re S.), .) but that the same conclusion would not follow where both parents were in law entitled to exercise parental authority even if one had been awarded "custody". The House of Lords dismissed the father's appeal noting that the mother had not wrongfully removed the child under the Convention since no one other than the mother had parental or custody rights. One of the mother's legal custody rights was to decide where the child would reside. Again, I would suggest that common law courts in Canada would not allow a custodial parent to unilaterally change a child's habitual residence if another person was entitled to exercise parental authority over the child unless the relevant law included a right to change the child's residence without consent/acquiescence.

(b) in common law provincial and territorial legislation that defines the concept.

Some statutes such as the Children's Law Reform Act[31], define "habitual residence" for the purposes of the Act. Other statutes such as the Family Law Act[32], incorporate the concept but do not provide a statutory definition. In those statutes where the concept is not defined it usually is interpreted to mean something close to the person's domicile of choice-the place where the person's life is centred and where he or she intends to live indefinitely. In spite of occasional suggestions to the contrary, most courts in the common law provinces interpreted "habitual residence" to include a concept of exclusivity in the sense that a person can only have one habitual residence at a time. The word "habitual" implies a more enduring and permanent connection between a person and a place than simple residence.[33]

In Cruse v. Chittum[34], Lane J. adopted the submission of counsel that while the focus of "habitual residence" is on the nature and quality of the residence, regular physical presence seems to be implied as well. Many authors and commentators adopted a similar definition and placed "habitual residence" between "residence" and "domicile" on a spectrum of connections between a person and a place [35]. Although evidence of intention is not as important in deciding habitual residence as it is in establishing domicile, it may be a relevant consideration in deciding the quality and nature of a person's presence/residence in a place. In Adderson v. Adderson[36], Laycraft C.J.A. considered other formulations of the definitions and adopted a similar interpretation whereby "habitual residence" referred to the quality of the residence more than the duration, though duration was a consideration, and that it required an intention between that required for domicile and residence, importing more durable ties than residence.

However, there are recent indications that perhaps there is no real difference between "habitual residence" and "ordinary residence" or at least far less than many lawyers and judges earlier thought. North and Fawcett [37] reviewed case law from about the mid '80s onwards and concluded that "habitual residence" should now be equated with "ordinary residence". Collins in the Twelfth edition of Dicey and Morris [38], also suggested that Lane J's decision in Cruse v. Chittum, that habitual residence was "something more than" ordinary residence may no longer be good law based in large part on Re E. (Child Abduction)[39].

Whether "habitual residence" now means the same as "ordinary residence" in the Canadian common law provinces depends on whether the definitional shift referred to by the above authors is confined to the legislation under which the cases referred to were decided. The current English thinking seems to be that the two concepts are essentially the same for family law purposes. In a related vein, the wording of the English and French versions of the definition of "residence" in the Quebec Civil Code Art. 77 seems to treat the two concepts as interchangeable. The short answer may be that in the absence of any legislative definition of the term "habitual residence" common law courts will adopt a purposive construction of the concept to reflect the context within which the phrase is used [40], but will be inclined to equate "habitual residence" with "ordinary residence" and vice versa in family law cases, particularly custody or access where both concepts are used primarily as jurisdiction thresholds intended to discourage child napping and force custody/access issues to be litigated in the place where the child's family life was centered.

In Manitoba there may be problems equating habitual residence with ordinary residence since The Domicile and Habitual Residence Act[41], treats habitual residence and domicile as identical concepts and everyone agrees that domicile is different from ordinary residence at various levels. By contrast, the English and Scottish Law Commissions [42] recommended that habitual residence not replace domicile as a general connecting factor because of the undeveloped state of habitual residence as a legal concept in common law jurisdictions. Unfortunately, I was unable to locate any Manitoba cases that provided insight into how to reconcile domicile, habitual residence, and ordinary residence having regard to the legislation.

If "habitual residence" and "ordinary residence" are interchangeable terms, it would mean that at least in principle a person could be without any habitual residence [43] (subject to statutory provisions to the contrary) and that a person could be habitually resident in two or more places [44] (which would seem to undermine the generally accepted view about the exclusivity of habitual residence). However, this could depend on the context within which the concept was employed. [45].

Regardless of the relationship between habitual and ordinary residence, there seems general acceptance of the reality that there is no practical difference between a young child's "ordinary" and "habitual" residence[46].

Notwithstanding general acceptance that "habitual residence" is primarily a matter of fact not law, common law courts seem to determine a child's habitual residence by reference to family lifestyle prior to separation and not simply where the child lives at the time the child's habitual residence becomes an issue. [47].

In Krisko v. Krisko[48], the court held that two children who were Canadian Citizens were not habitually resident in Ontario for the purposes of establishing jurisdiction under s. 22 of the Children's Law Reform Act where they lived with their parents in Dubai indefinitely, even though the parents intended at some time to return to Ontario. While it is doubtful that the parents' domicile of choice shifted from Ontario to Dubai, the nature and duration of their residence in Dubai was sufficient to make them habitually resident there. The children were also ordinarily resident in Dubai on any reasonable definition of the phrase for the same reasons.

In Chan v. Chow 2001 BCCA 276 (BCCA), the British Columbia Court of Appeal addressed the concept of a child's "habitual residence" under ss. 44(2)(3) of the Family Relations Act[49] and the Hague Convention and in particular whether the definition of "habitual residence" in ss. 44(2)(3) of the Act [50] applied under the Convention. Proudfoot J.A. pointed out that there was conflicting authority on the point at the Superior Court level [51] and held that the definition in the Family Relations Act did not apply under the Convention primarily because the Act and the Convention serve different purposes [52]. With respect, Proudfoot J.A.'s comments on the difficulties of applying the statutory definition to the Convention are not convincing. More importantly, she seemed to base her conclusion, at least in part, on La Forest J's comments in Thomson v. Thomson [53] : that the provisions of the Convention and Manitoba's Child Custody Enforcement Act [54] operated independently of one another. Contrary to the impression created by Proudfoot J.A.'s statements, when considered if full context La Forest J's comments seem to confirm that the Convention and the Act had similar objectives-requiring custody to be determined in the place where the child's life was centred. Moreover, it is difficult to see how a court could decide that the child was habitually resident in a province to decide custody but not habitually resident there to order the child's return in violation of a local order made on the basis the child was habitually resident in the province [55]. Finally, the definition of habitual residence in the Act (as in the Uniform Legislation) simply mirrors the definition developed by the common courts generally. In dealing with the statutory definition in ss. 44(2)(3) FRA, Proudfoot J.A. held that the Act made a significant distinction between parental and non-parental care. In ss. 44(2)(a) and (b), a child merely has to "reside" with one or both parents to be deemed to be habitually resident in a place, whereas if the child is with a non-parent, he or she needs to reside with that person on a "permanent basis for a substantial period of time" [56].

In Bedard v. Bedard [57], the Saskatchewan Court of Appeal held that a father had not acquiesced in the mother's unilateral removal of children from British Columbia where the family had resided prior to separation to Saskatchewan. The children were habitually resident in British Columbia and the mother could not unilaterally change the children's habitual residence by moving them away without a court order or the father's consent/acquiescence. The husband had acted promptly to get an order for custody in B.C. but did not try to enforce the order in Saskatchewan for an extended time while he tried to negotiate with the mother. The Court of Appeal disagreed with the trial judge's assessment of the evidence and held that there was no "clear and cogent evidence of unequivocal consent or acquiescence" in the removal. As a result, the Saskatchewan courts had no jurisdiction to decide custody under s. 15(1)(2) of the Children's Law Act, in light of the pending proceedings in British Columbia where the children were habitually resident. The analysis under the Act reflected the same definition that courts in the common law provinces apply under the Convention to decide a child's "habitual residence".

In Hunter v. Hunter 2005 SKQB 93 (SQB), Wright J. also addressed the meaning of a child's "habitual residence" under s. 15 of the Children's Law Act [58], lfollowing the mother's removal of the child from British Columbia to Saskatchewan. Wright J. distinguished Bedard v. Bedard and held that the father in this case had acquiesced in the mother's removal of the child even if he had not originally agreed to the removal. The father did not manifest any objection to the child residing in Saskatchewan and commenced no proceeding there or in B.C. and had even acknowledged the child was living with the mother in an inter spousal agreement. The father's acquiescence was sufficient to allow the mother to change the child's habitual residence to Saskatchewan.

In Dale v. Dale [59], Belch J. refused to assume jurisdiction to decide custody of two children who had been brought by their mother with the father's consent from Pennsylvania to Ontario to attend school for a limited time up until the end of school in June 2003. The father extended his consent to 31 August 2003 and then to 31 December 2003. In November 2003 the mother advised the father she intended to stay in Ontario with the children. Belch J. held that the children had been habitually resident in Pennsylvania pursuant to s. 22(2) CLRA before their move to Ontario, the mother could not unilaterally change the children's habitual residence and the father had never agreed to more than a temporary stay in Ontario. He went on to hold that the children should be returned to Pennsylvania under the Convention, on the assumption that since the children were habitually resident in Pennsylvania under the CLRA there were also habitually resident there under the Convention.

(c) The Hague Convention on the Civil Aspects of International Child Abduction

Collins[60] points out that habitual residence has long been a favourite expression of the Hague Conference on Private International Law but no definition of the term has ever been included in a Hague Convention. The case law in the common law provinces has been consistent under the Hague Convention on International Aspects of International Child Abduction that a child is habitually resident in the place where the child last lived with both parents in a family setting [61]. The case law requires that the family actually have adopted a residence in a place for it to be the child's habitual residence. A brief sojourn or temporary presence in a place is insufficient to establish a habitual residence in that place.

The courts in the common law provinces routinely have maintained that one parent cannot unilaterally change a child's habitual residence by moving away with the child. Although the right to "custody" includes a right to decide where a child will live[62] and the SCC went so far as to suggest that a custodial parent may be able to unilaterally change a child's habitual residence even in the face of a non removal clause,[63]Canadian courts do not appear willing to read a unilateral right to do so into a custody order unless the order expressly so provides[64] or unless the law under which the parent exercises custody allowed him or her to unilaterally change the child's residence[65].

Certainly, one joint parent does not have authority to change a child's habitual residence without a court order to that effect or the consent/ acquiescence of the other joint parent[66] since the right to joint custody usually carries with it a right to participate in major parenting decisions, including where the child will reside[67]. Notwithstanding the La Forest J's comments in Thomson v. Thomson [68] to the contrary most courts seem to accept that a parent who has been granted custody but with the proviso that the child not be removed from the jurisdiction will not be allowed to unilaterally change the child's habitual residence by moving with the child[69], in spite of the SCC's suggestion that this might be possible after a final custody order[70]. The parents can agree to a change in the child's habitual residence or one parent can acquiesce in such a change by the other parent[71]. However, courts are reluctant to find an agreement to change or acquiescence in a change in the absence of clear evidence that was intended[72].

In Williams v. Elliott [73], Steinberg J. pointed out how difficult it may be to determine a child's habitual residence with a highly mobile family. His solution came close to using a real and substantial connection case to decide close cases.

In Chan v. Chow [74], the BCCA dealt with a similar problem but in a more traditional fashion. The parties married in Alberta in 1993, their child was born in 1994, and they separated in 1995. In January 1996 the mother was granted interim custody by ex parte order and took the child to Australia without informing the father. She later took the child to Hong Kong. In the meantime, the father was granted interim custody. He also moved to Hong Kong to attempt reconciliation. In April 1997, the parties were divorced in Alberta and awarded joint custody. In July 1998 the parties made a further attempt at reconciliation in Ontario. The family moved to British Columbia in August 1998 and to Hong Kong in June 1999. The parents separated permanently while living in Hong Kong and the child spent about equal time with each parent. In March 2000, the father returned to British Columbia with the child but without the mother's knowledge or consent. The mother applied for the child's return to Hong Kong under the Convention. The chambers judge noted that the child's permit to remain in Hong Kong and the mother's immigration status in Canada were about to expire and then held that the Convention did not apply since the child was not habitually resident in Hong Kong immediately before the father brought her to British Columbia. The Court of Appeal disagreed and held that the child had been habitually resident in Hong Kong immediately before the removal. She had been there for nine months, which was an appreciable period of time, the parents clearly had a settled intention to make Hong Kong their home before their final separation, which meant they were habitually resident there, and the child's habitual residence was tied to her parents' habitual residence. Since the parents shared joint custody, neither had a right to unilaterally change the child's residence as a matter of law. However, that was not an end to the case since the child's return posed the risk of an intolerable situation since she would have to move again when her permit to remain in Hong Kong expired and the mother had demonstrated an unstable lifestyle. Accordingly, the Court declined to order the return of the child under the Convention and referred the matter for trial in the province. The Court's reasons confirm that the fact a person's immigration status is uncertain does not mean that he or she cannot establish habitual residence in a place although it may be a factor bearing on whether he or she reasonably intends to remain in the place indefinitely.

While it is not a Canadian case, Kozinski C.J.'s comments in Mozes v. Mozes[75] contain some instructive comments on the meaning of habitual residence in other common law jurisdictions. Although the appeal is from a California decision and California has a civilian heritage, it is clear that the Court of Appeal was applying common law concepts[76]. The mother had brought the children from Israel to California with the father's consent for a limited time (about 15 months) and purpose (primarily education). However, a year after they arrived, the mother applied for divorce and custody in California and the father sought the children's return to Israel under the Convention. The father appealed the District Court's denial of his petition. Kozinski J. emphasized that the Convention was intended to prevent and address unilateral removal of children from their place of habitual residence that interfered with a person's custody rights. The issue turned on whether the children were still habitually resident in Israel or whether their habitual residence had changed to California given the nature and duration of their presence there. Kozinski C.J. disagreed with the suggestion the words "habitual residence" had a simple and obvious meaning. While he tried to downplay the technical aspects of the phrase, he acknowledged that the meaning of the words was a question of law, being a matter of statutory interpretation, even though the meaning was essentially a matter of fact making the term a mixed question of fact and law. Kozinski C.J. confirmed the English law holding that there was no real distinction between ordinary residence under British law and habitual residence under the Convention and also confirmed the difference between habitual residence and domicile involved the nature of the requisite intention to establish each. Kozinksi C.J. was very clear that habitual residence involved proof of a settled intention to reside in a place indefinitely. He also pointed out that many courts have held that a person can only have one habitual residence at time under the Convention. The exception would be the rare situation where someone splits time more or less evenly between two locations. Kozinski C.J.'s case law review included reference to a Quebec case-Y.D. v. J.B (Droit de la famille-2454)[77], where the court appeared to focus simply on the objective facts but observed that the court "nevertheless made what we would call a finding of settled purpose, remarking that 'the members of this family were neither visitors nor tourists in California'". This suggests that "intention" may be more relevant in fact and substance than appears to be the case in law and form under Quebec law. Kozsinski C.J. also agreed that when it came to children, the intention or purpose which has to be taken into account to determine habitual residence was that of the person or persons entitled to decide the child's residence. Problems arise when the persons entitled to fix the child's residence no longer agree. Kozinski C.J. rejected the suggestion that a child remained habitually resident in the last place the family lived together unless a court ordered or the parents agreed otherwise as well as the suggestion that as a general rule a parent could unilaterally change the child's residence as a matter of objective facts just by living somewhere else with the child. Instead, he adopted the more widely accepted view that as a general rule after separation, neither parent can unilaterally change a child's residence but instead requires a court order, consent, or acquiescence to the change. The latter may arise by simple knowing inaction to a change. He also confirmed that an intention to live somewhere will not result in habitual residence there unless the person is actually physically present there.

In Mozes v. Mozes, Kozinski C.J. opined that the courts would be undermining the integrity of the Convention if they allowed a child's habitual residence to be changed too easily. In the absence of consent/acquiescence or court order, a parent should only be allowed to change a child's habitual residence by moving with the child if the child resided there for a considerable time with no objection by the other parent or the applicable law allowed the parent to unilaterally change the child's residence as an incident of his or her custody rights. Although Kozinski C.J. appeared to accept the possibility of unilateral change if the duration of the change was sufficiently long, this appears to be no more than recognition that acquiescence can be inferred by inaction. Kozinski C.J. then remitted the matter for determination on the proper legal principles. In this case, the parents had agreed that the children would be in California for a limited time and purpose. There was no agreement or acquiescence to any indefinite stay and no consent to changing the children's habitual residence. That the father immediately took steps to arrange the children's return negated any change or finding that he had acquiesced in the change so it seemed unlikely that the court could find the children's habitual residence had changed.

In de Haan v. Gracia [78], the parties commenced cohabitation in France in 1994, had two children, and were married there in 1999. The mother and both children were Canadian citizens. The parents separated and commenced divorce proceedings in France in 2002 but later reconciled and decided to move to Alberta, Canada. The mother and children went on ahead and the father arrived a few months later. The father decided he wanted to return to France but the mother refused to accompany him or allow him to take the children. Power J. dismissed the father's application for a return order under the Hague Convention, noting that the father had consented to the family, including the children, moving to Alberta. Based on the parties' words and conduct, Power J. was satisfied that they had a settled intention to abandon their prior habitual residence in France and to establish one in Alberta. Accordingly, the children were habitually resident in Alberta and there was no basis to order their return since the application was commenced after the change in habitual residence. The only troubling aspect of the case was when Power J. held that the children's habitual residence changed almost immediately upon their arrival in Alberta. With respect, this seems more domicile oriented than habitually resident where most courts insist on some extended physical presence before an habitual residence is established. At least in Power J's opinion, there is no rule of law requiring extended residence in a place to establish a habitual residence there if the intention to live there indefinitely is clear enough. With respect, this conclusion should be approached with some caution given the weight of authority in favour of requiring a more extended physical presence in a place.

In Chan v. Chow [79], the British Columbia Court of Appeal held that the definition of "habitually resident" in the custody jurisdiction section of the Family Relations Act did not apply to determine a child's habitual residence under the Convention and then appeared to do just that. By contrast in Dale v. Dale [80], Belch J. applied the same definition in s. 22(2) CLRA to decide a child's habitual residence under the Convention but without expressly commenting on the propriety of doing so. Unless the definition in the local custody legislation contains a definition that is clearly different from the usual meaning of habitual residence under the Convention, it is likely that courts will do the same as Belch J. did in Dale notwithstanding Proudfoot J.A.'s comments to the contrary in Chan c. Chow, since the Convention and Uniform Custody legislation have similar objectives.

In Medhurst v. Markle(1995) 26 O.R. (3d) 178 (OGD), the trial judge found that the parents moved from Canada to Germany to live indefinitely rather than as tourists or for vacation. As a result, the parents became habitually resident in Germany as was their daughter who was born in Germany in December 1994. 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 entitle her to change the child's habitual residence when she decided to separate from the father and remain in Canada. The father appealed. In the course of the appeal, Jenkins J. noted that the trial judge had used the definition of "habitually resident" in s. 22(2) CLRA to decide the child's habitual residence under the Convention. Jenkins J. rejected the father's argument that this was improper since principles of public international law not domestic law governed the interpretations of treaties incorporated into domestic law [81]. Jenkins J. held that since the Convention had been incorporated into the CLRA it was part of Ontario custody law and the same definition applied under the Convention as applied under s. 22(2) CLRA, noting that the SCC appeared to recognize this in Thomson v. Thomson.

(d) the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children

There is no reason to suspect that common law courts will adopt a different interpretation of "habitual residence" under this Convention than the Convention on International Child Abduction, especially given the large body of case law that has developed under the latter Convention. The Convention on Parental Responsibilities is not so different in fundamental policy objectives as to force the courts into a contextually different approach. Even if the BCCA was correct in Chan v. Chow that habitual residence had a different meaning under the Convention than under domestic custody law, this Convention, like the Convention on Civil Aspects of International Child Abduction, is also an international treaty with similar basic objectives. On balance, it is likely that most courts would adopt Jenkins J's reasoning in Medhurst in preference to the BCCA's in Chan since both the domestic legislation and Convention are aimed at restricting custody cases to the place where a child's life is centered to discourage child napping and reduce multiplicity of proceedings.

Most common law courts have limited their attention to cases from Canada and occasionally England or the Commonwealth in deciding a child's "habitual residence" under the Hague Convention and presumably will do so under the Jurisdiction Convention, if it is implemented.

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