An 18-month-old baby will be allowed to remain in Canada after a judge in Nova Scotia overturned a ruling that would’ve required her to move back to Washington State, despite only living there for 42 days of her life.
In the written decision, released earlier this week, Justice Duncan Beveridge ruled the baby could stay in Nova Scotia instead of moving to Washington State. His ruling cited precedent from earlier this year concerning The Hague Convention, which works to protect children in international abduction and retention cases.
According to court documents, the parents of the child met online when the mother was a 15-year-old girl living in Nova Scotia and the father was a 31-year-old man living in Texas. The two eventually married in 2014 and moved in together in Washington State 14 months later.
CTVNews.ca is not naming the baby or her parents.
Court heard the couple had a daughter in December 2016, but a month later the two were involved in “an incident of domestic violence” and the mother headed back to Nova Scotia with the baby. They would each file for divorce later in 2017.
In December of that year, the father filed an application under The Hague Convention asserting the baby’s habitual residence is Washington State and that the baby had been wrongfully retained in Nova Scotia. The mother argued the move to Nova Scotia was consensual and open-ended.
The Hague Convention is an international agreement that works to ensure the prompt return of a child who’s been taken to another country or is being held in another country by one of the parents.
“The Hague Convention is a piece of legislation that a whole bunch of countries signed on to that is essentially meant to protect children from being removed or retained in various jurisdictions,” Leigh Davis, a family lawyer and owner of the Halifax-based law firm Davis Reierson, said in a phone interview with CTVNews.ca. “It gives you the ability to bring an application under that piece of legislation, even though you’re operating in two different countries.”
Justice Jeffrey Hunt agreed with the father in his decision on Feb.1, 2018 and ruled the baby should be returned to Washington State. The mother then appealed, indicating the law had been applied improperly.
While waiting on an appeal to be heard, the mother approved an unsupervised visit between the father and the baby in July, but the father refused to return the baby and instead took her to the United States. He eventually returned the baby to Nova Scotia 18 days later.
On appeal, Beveridge cited a case from the Supreme Court of Canada from earlier this year that asserted there is no real test to determine what an habitual residence is and instead a look at the circumstances of the situation should be considered.
“(The father’s) burden was to establish that it is more likely than not (a balance of probabilities) that immediately prior to the date of alleged wrongful retention, Washington State was (the child’s) place of habitual residence,” Beveridge wrote in the decision. “He has not done so. It is my view that, immediately prior to June 2017, it is more likely than not, Nova Scotia was (the child’s) place of habitual residence.”
Davis said family lawyers might only have a case or two each year that would compare to something like this.
“It doesn’t happen very often, but that’s why The Convention is in place,” she said.
