One Word Could Have a Significant Impact on How a Court Might Rule

written on behalf of Feigenbaum Law

In many of our blog posts, we have included introductions about how individual words or terms can have a significant impact on how a statement, contract, or law is interpreted. In today’s blog, we look back at a decision recently heard by the Ontario Superior Court of Justice where the court had to look at whether the relocation of a child by one of the parents (who were separated) constituted a change in the child’s “habitual residence,” which is a term newly used within family law legislation. We’ll take some time to explain the facts before getting into the court’s analysis of the term and how it compares to the term used prior to amendments in family law legislation.

Parents cannot agree on proper location for a proceeding

Back in October 2021, the mother and the parties’ three children moved out of the matrimonial home in Bruce County without giving explicit notice to the father, who did not explicitly provide consent for the move. That said, it eventually surfaced that the father was aware of the mother’s intent to move with the children, which the court said amounts to implicit consent. The father, whose parents own and reside in the matrimonial home had told the mother, “U can pack ur stuff (and) leave tmrw!!”.

In addition to the father being aware that the mother had planned to move, the court also found he was aware that she had family in the Simcoe County area, and that she had accommodations available to her in the form of a farmhouse owned by her grandmother. The father did not deny that he knew the mother had nowhere else to go, or that he suggested she and the children move there during the last months of the relationship when the children had started to show COVID-19 symptoms.

The parties had a number of parenting issues to resolve, but before they could get into those, they had to first determine whether Simcoe County or Bruce County was the proper venue. Ontario’s Family Law Rules state that cases involving parenting time shall be started in the municipality where the child “habitually resides.” Until last year, legislation used the term “ordinarily resides.” To a layperson, those two terms might seem identical. However, the court used the opportunity to look at what the updated language means.

“Ordinarily resides” vs “habitually resides”

The importance of looking at the difference between the two terms can be attributed to the relatively recent move of the mother and children. The court said that when someone moves, it is fair to say they become “ordinarily resident” in the new place. However, the court said they do not become “habitually resident” quite as quickly. The question then becomes whether the children have lived in their new home long enough to qualify as habitually residing there.

The only piece of legislation which defines the term “habitual residence” is the Children’s Law Reform Act which states,

“A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.

2. If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.

3. With a person other than a parent on a permanent basis for a significant period of time.”

The court looked at the facts leading up to the hearing and determined that the father’s behaviour constituted implied consent, thereby qualifying the children as habitual residents of their new city. The court wrote, “Under the CLRA definition, the children’s habitual residence became Simcoe Country when they moved there with the respondent and without any intention to return to Bruce County.”

Since the Divorce Act, Family Law Act, and Family Law Rules are silent on the definition of “habitually resides”, the court admitted it would be possible to interpret the phrase differently under the context of those pieces of legislation. However, the court listed three reasons why it was appropriate to rely on the CLRA definition.

• First, was that the Family Law Rules themselves reference the CLRA.
• Second, was that the updated language used in the CLRA comes from a significant undertaking by the provincial and federal governments to promote uniformity across different pieces of law. By neglecting to turn to this new language, the court would have introduced confusion and unpredictability.
• Finally, the court wrote that the definition found in the CLRA is in line with its plain everyday meaning and does not exclude the possibility that someone could become habitually resident in a new location immediately after moving there, which is to say it doesn’t automatically exclude situations which would have counted as “ordinarily residing” under older language.

The court ruled that further matters between the parents would be heard in the area where the mother currently lives with their children.

Contact Feigenbaum Consulting in Toronto to assist your family with issues arising following a divorce or separation

At Feigenbaum Consulting, Mark Feigenbaum advises clients on an extensive range of family law issues. Some of the types of issues we help clients with include those that normally follow a divorce or separation, including matters related to child support, spousal support, and the division of property. We also work with clients who may have considerations around the division of business assets, hidden assets, and inheritance issues.

Our work in both family law and corporate/tax law means we can apply our knowledge of one area of law to the next. We understand the need our clients have of retaining as much financial stability as possible during what is a difficult time both financially and emotionally and aim to make the process less stressful. To find out how we can get started assisting you, please contact us online or by phone at 877-275-4792 to discuss how we can help with your family law matter.