Child's vacation stay in BC doesn't affect habitual residence: BC Court of Appeal

Mother relocated child to Ontario without required notice of intention; regular residence in Iran

Child's vacation stay in BC doesn't affect habitual residence: BC Court of Appeal

A child’s temporary accommodations during a vacation would not constitute their habitual residence under British Columbia’s Family Law Act, the BC Court of Appeal has ruled.

In Aslanimehr v. Hashemi, 2022 BCCA 248, the parties were Iranian citizens who got married and resided in Iran. They had one child. From 2016 to 2018, they visited Canada for long periods. The father had acquired Canadian citizenship as a teenager, while the mother obtained permanent resident status in Canada during one of these visits.

On a planned four-month vacation in Vancouver, the parties separated. The mother took the child and moved to Toronto, where her parents were staying, and brought divorce proceedings in Ontario.

About 10 days later, the father began a family law proceeding in BC. The father alleged the following:

  • the mother breached s. 66 of the Family Law Act when she failed to provide 60 days’ notice of her intention to relocate the child from BC to Ontario
  • the child was “habitually resident” in Vancouver under s. 72 of the act
  • the child should be returned to Vancouver pursuant to s. 46 of the act.

The mother asked for the dismissal of the BC proceeding, arguing that the province’s courts lacked jurisdiction because the parties were not BC residents when the events happened and the child was in BC when the litigation commenced. Alternatively, she asked the BC court to declare Ontario as the appropriate forum.

The BC Supreme Court stayed the proceedings. The judge ruled that Tehran, Iran was the place where the child most recently resided with his parents under s. 72; BC courts had no jurisdiction over the matter; and Ontario was the proper forum for resolving issues regarding the child.

Court of Appeal partly allows father’s appeal

The appellate court quashed the declaration of Ontario as the appropriate forum but upheld the rest of the lower court’s order. BC courts lacked jurisdiction over the proceeding since the child did not reside in the province and was not present in the province when the action was filed, the Court of Appeal determined.

The appellate court found no errors in the judge’s decision to stay the proceeding even though he could have dismissed it. The judge carefully considered all the evidence and the parties’ settled intentions, the court said.

The judge appropriately rejected the father’s argument that the child’s habitual residence was in BC, the appellate court held. The child was not “habitually resident” in the province in the ordinary sense of that phrase but was only visiting with his parents.

The Court of Appeal also found that, given that the BC court lacked jurisdiction, the judge was wrong to declare that Ontario was the proper forum for determining issues concerning the child. Instead, a court with authority over the matter should determine this issue, the appeal court said.

The jurisdictions of either Ontario or Iran had the authority to deal with the issues in this litigation, the appellate court concluded. BC, on the other hand, had no such authority or basis under a statutory provision to transfer the proceeding to Ontario.

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