The law surrounding a determination of habitual residence, continues to evolve post OCL v. Balev 2018 (Supreme Court of Canada). 

In the recent Alberta Court of Appeal decision in MacDermid v. Aqunio, 2024 ABCA 202, the court upheld the trial judge’s ruling, dismissing the father’s application seeking a ruling under the Hague Convention on Child Abduction that the children’s habitual residence was the Dominican Republic, and that the mother had wrongfully removed or wrongfully retained the children in Canada. The court looked at a number of factors, such as: the father, a Canadian citizen had business interests in the Dominican Republic (“DR”); the mother was born in the DR, but became a permanent resident in Canada in 2018; the parties had spent time in Edmonton and the DR; the father estimated after the first child was born, 57% of their time had been spent in the DR and testified that the parties shared an intention to raise their two children, 7 and 4, in the DR; the mother had an Alberta driver’s license and Alberta health card; parties had renovated their Edmonton home to accommodate their mothers-in-law, and the oldest child, a daughter of the mother from a previous relationship, was registered in school in Edmonton; and despite travelling back and forth between Alberta and the DR frequently, the last flight back to Canada in May 2023 was with one way plane tickets. The Alberta Court of Appeal stated that the father could not point to any authority that “habitual residence” requires a mathematical calculation of the proportions of a child’s life spent in various places. The trial judge’s assessment that Alberta was the habitual residence, was upheld on the evidence. Whether “habitual residence” is viewed as a question of fact or a question of mixed fact and law, appellate courts must defer to the application judge’s decision, absent palpable and overriding error:  Office of the Children’s Lawyer v Balev2018 SCC 16 at para 38, citing Housen v Nikolaisen2002 SCC 33 at paras 10, 25 and 36.

Max Blitt KC

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