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Can One Parent Unilaterally (and Suddenly) Change a Child’s “Habitual Residence”?

Can One Parent Unilaterally (and Suddenly) Change a Child’s “Habitual Residence”?

The question in a recent Ontario case is whether a parent, who has the temporary, post-separation primary care of the child with the other parent’s consent, can suddenly and unilaterally move the child to another province, thereby changing the child’s “habitual residence” for the determination of custody and access at a later trial.

In Pearson v. Whittington, the couple were the parents of a 2.5-year old daughter.  They had separated in the summer of 2011, and since that time the child had been living with the mother, with the father’s consent.  There was no court order or written agreement between the parties dealing with the child’s custody or access to her.

A few months later, the father tried to contact the mother through Facebook, the first time asking to see his daughter, and the second time asking to see her for her birthday.  Both time the mother refused, and in fact blocked the father from her Facebook entirely.   The father did not have a working phone number for the mother; he showed up unannounced at her home in Toronto, but found it was vacant.

Six months after the separation date, in late 2011, the father started a court application for access to his daughter (and served the documents on the maternal grandmother, who indicated the mother was “out for the day”).   By February of 2012, however, the father learned that the mother had actually moved with the child to Calgary several months earlier.

In defence of her actions, the mother claimed that, as the de facto custodian, she had the right to move the child to Alberta.   She said that, absent a court order or separation agreement that prohibits such a move, as custodial parent she had the right to change the child’s place of residence.

The court dismissed the mother’s argument.   While it was true that a de facto custodian might eventually gain the right to unilaterally change a child’s habitually residence – for example after having custody for several years – this move followed very shortly after the separation date.   Such a short period of custody was insufficient to give rise to the right the mother claimed; to hold otherwise would mean that any non-custodial parent who did not immediate litigate custody and access after separation would run the risk that the other parent could change the child’s habitual residence at whim.   Nor was there any automatic “rule” or presumption that a custodial parent can unilaterally change a child’s residence; rather, the best interest of the child must always govern.  

In this case, the mother had no ostensible right to make the move:  it took place barely two months after separation, was done without the father’s consent, and in fact was accomplished in a manner designed to deliberately hide the fact from him. In short, her status as de facto custodian did not give her the legal authority to take the steps she did.

Since the mother’s unilateral decision gave rise to jurisdictional issues (i.e. whether an Ontario court had the authority to hear the matter, given that the mother was now living in another province), the court settled that preliminary matter by declaring that the daughter’s habitual residence remained Ontario at the time the father brought his application for access in late 2011.

For the full text of the decision, see:

Pearson v. Whittingham, 2012 ONCJ 187  http://canlii.ca/t/fqvpk

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com.