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Mother cannot unilaterally change child’s habitual residence by wrongful act

In Habib v. Amin, the parties were married for three years and had one child. The parties initially resided in Ontario, moved to England where the child was born, and then moved to Pakistan on a temporary basis for the father to expand his business. The parties planned to return to Ontario.

The mother left with the child to England, and the father sent notice of child abduction to the National Missing Children’s Services of RCMP and British High Commission. The mother obtained an order pursuant to UK legislation to prevent the father from removing the child from England.

The father returned to Ontario, filed a motion for temporary custody and return of child to Ontario. The Ontario Court granted the motion and held the mother wrongfully removed child from Pakistan in breach of the father’s right of custody.

The child’s habitual residence was in Pakistan when he was wrongfully removed and at commencement of father’s application. The Court relied upon the parent’s patrae jurisdiction, which did not conflict with the Children’s Law Reform Act (Ont.).

Furthermore, there was a real and substantial connection between the parties, the child and Ontario. The parties’ intention was to return to Ontario and evidence needed to consider child’s best interests were in Ontario. Habib v. Amin (Sept 15, 2014, Ont. S.C.J) 245 A.C.W.S (3d) 878