The Supreme Court of British Columbia may not have jurisdiction over your “birth tourism baby!”
In a recent decision, Kong v. Song, 2018 BCSC 1691, the Supreme Court of British Columbia determined that the habitual residence of a 2.5-year old child was not in Canada, which meant that the father had wrongfully removed the child from China and brought him to Canada.
The child, Lucas, was born on November 9, 2015, in Richmond on a birth-tourism arrangement. Lucas spent the first 6 months of his life in Canada and after he returned to China with his parents. In China he resided with his mother and spent time with his father. The mother was a non-resident of Canada and the father had a permanent resident card in Canada. The father split his time between Canada and China.
From December 13, 2017, to February 2018, the father and Lucas were in Canada. The mother argued that she did not consent to Lucas being removed from China, but the father alleged that it was always the parties’ intention that Lucas would return to Canada and it was in Lucas’ best interest to remain in Canada. One of the questions the court had to determine was “where was Lucas’ place of habitual residence prior to and after his removal from China to Canada on December 13, 2017?”
The parties did not agree whether the child’s place of habitual residence changed from Beijing to British Columbia or whether there was a settled intention that the child’s place of habitual residence would change in December of 2017. The question of Lucas’ place of habitual residence helped the court to determine whether it has jurisdiction to make orders sought by the father regarding guardianship, parenting arrangements or contact.
The legal term “habitually resident” is defined in section 72(2) of the Family Law Act as follows:
(2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided
(a) with his or her parents,
(b) if the parents are living separate and apart, with one parent
(i) under an agreement,
(ii) with the implied consent of the other parent, or
(iii) under an order of a court or tribunal, or
(c) with a person other than a parent on a permanent basis for a significant period of time.
“A habitual residence is established by residing in a place for an appreciable period of time, with a ‘settled intention’. A child’s ‘habitual residence’ will be tied to the habitual residence of his or her custodian.”
a) “Settled Intention”
To determine whether the parties had a settled intention for Lucas to be in British Columbia, the court considered some of the following factors:
- Both parties have relocated to the new state;
- The custodial parent is employed in the new state;
- The custodial parent had taken steps to satisfy the immigration requirements of the new state;
- The children were enrolled in school in the new state;
- The parents had purchased one‑way tickets to the new state; and
- Accommodation has been arranged in the new state.
However, establishing a “settled intention” is not enough to establish habitual residence. The child actually has to move and an “appreciable period” of time must pass.
b) “Appreciable period”
The court discussed the following factors that need to be considered when determining whether residence has been for an appreciable period of time such that habitual residence has been established:
- Bringing personal possession to the new country;
- Taking the necessary steps to establish residence before travelling to the new country;
- Having a right of abode in the new country;
- Seeking to bring family members to the new country; and,
- Having “durable ties” with the new country:
The evidence established that there had been discussions between the parties prior to and after Lucas’s removal from China regarding the possibility of Lucas remaining in British Columbia, but the court was not satisfied that an agreement was reached. Even if the initial decision made by the father to bring Lucas to British Columbia on December 13, 2017, was approved by the mother, there was no agreement between the parties that he would remain in Canada after February of 2018. Further, the court stated that substantial evidence regarding what is in the child’s best interest will likely be in China and not British Columbia. Lucas has a tenuous connection to British Columbia, because his connection is based on a wrongful removal from China. Therefore, the Court did not have the jurisdiction to make an order with respect to Lucas’ guardianship, parenting arrangements or contact.
Family law is a complex area of law involving many issues and considerations. If you need help regarding your family-law issues please give Vancouver Richter Trial Lawyers a call. Our contact number is 604.264.5550.