Re A; R v O (Habitual residence; Jurisdiction)

• Jurisdiction: Bermuda
• Judgment Date: 21 April 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Divorce Jurisdiction 2022 No 96

In the matter of A (a child)

Between:

R

Petitioner

and

O

Respondent

[2023] Bda LR 43

Divorce Jurisdiction 2022 No 96

In The Supreme Court of Bermuda

Application for stay of proceedings — Prohibition of child leaving Bermuda — Application for sole care and control by Father — Habitual residence — Jurisdiction — Forum conveniens — Mother is Canadian, Father is Bermudian

The following cases were referred to in the judgment:

Re B (a child) [2016] UKSC 4

Re A (Abduction: Habitual Residence) [1998] 1 FLR 49

Re H (Minors) (Abduction: Custody Rights) [1991] AC 476

Re B: B v Y (Jurisdiction) [2020] Bda LR 48

KS v GS [2010] Bda LR 63

Spiliada Maritime Corp v Cansulex [1986] 3 All ER 843

Re S (Residence order; Forum Conveniens) [1995] 1 FLR 314

M v M (Stay of Proceedins: Return of Children) [2005] EWHC 1159

Petitioner in person, assisted by M Piper as McKenzie Friend

Ms A Cassidy for the Respondent

RULING of Wheatley AJ

Introductory

1. This application stems from divorce proceedings commenced by the Petitioner (hereinafter referred to as the Father) who then filed an ex-parte application on 6 March 2023 (the Father's Application) to prevent the child of the family who is now 9 years old (hereinafter referred to as A) from leaving the jurisdiction, joint custody, care and control of A and in the alternative defined access with A which would become a mirror order in the Ontario Courts. By Order made by Justice Stoneham on 9 March 2023, inter alia, A was prohibited from leaving the jurisdiction, a Social Inquiry Report was ordered to be completed on an expedited basis at it relates to A's welfare both in Bermuda and Canada.

2. The Respondent (herein after referred to as the Mother) from the first inter partes appearance of the Father's Application, the Mother contested that Bermuda was the appropriate jurisdiction to determine issues in relation to the marriage and in relation to A. Albeit, the Mother did not make a formal application to stay the proceedings in Bermuda, given the Overriding Objective and the nature of the application, it was imperative that this preliminary issue be determined expeditiously.

3. The Mother is Canadian and the Father is Bermudian. A lived in Canada until December 2022 and is a Canadian citizen. In accordance with the Bermuda Immigration and Protection Act 1956 (the Immigration Act), a Commonwealth citizen and the child of a Bermudian father born overseas, is deemed to have Bermuda status on her birth. This was initially contested by the Mother on the basis that the child had not been habitually resident in Bermuda; however, upon reading Section 18 (3) (b) of the Immigration Act, it was clear that the only requirement regarding domicile related to the parent who is Bermudian and not the child.

4. The parties were married on 25 March 2014; however, the relationship deteriorated in March 2017, the basis of which is disputed between the parties. A has only ever resided in Ontario, Canada with the Mother with the Father visiting A in Canada as well as A travelling to Bermuda with the Mother for access. Therefore, A has been registered in the Canadian school system since she was of school age and never attended school in Bermuda.

The Mother's position

5. The Mother avers that although she has frequently travelled to Bermuda for the last six years, the Father has never restricted her ability to return to Canada with A until now. She believes this is linked to the Mother filing matrimonial proceedings in Canada. The Mother has asserted, inter alia, that as proceedings were commenced in Canada first, Canada is the appropriate jurisdiction in relation to both matters of the parties' marriage as well as regarding A.

6. Ms Cassidy for the Mother relied on various sections of the Children Act 1998 (the Children Act) to aver that the Bermuda courts do not have jurisdiction to make orders in relation to A. Section 36L of the Children Act states as follows:

“Jurisdiction

36L (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where—

• (a) the child is habitually resident in Bermuda at the commencement of the application for the order; or

• (b) although the child is not habitually resident in Bermuda, the court is satisfied—

  • (i) that the child is physically present in Bermuda at the commencement of the application for the order,

  • (ii) that substantial evidence concerning the welfare of the child is available in Bermuda,

  • (iii) that no application for custody of or access to the child is pending before an overseas tribunal in another place where the child is habitually resident,

  • (iv) that no overseas order in respect of custody of or access to the child has been recognised by a court in Bermuda,

  • (v) that the child has a real and substantial connection with Bermuda, and

  • (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Bermuda.

(2) A child is habitually resident in the place where he resided—

• (a) with both parents;

• (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent or implied consent of the other or under a court order; or

• (c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.”

7. Therefore, Ms Cassidy submitted that the Court can be satisfied not to exercise jurisdiction under Section 36L on the following grounds:

• i. The Mother and A are both currently in Bermuda as visitors.

• ii. A is not habitually resident in Bermuda, but rather is habitually resident in Canada.

• iii. The Mother and A have maintained their direct ties to Ontario Canada, specifically long-term permanent accommodation, family ties, employment for the Mother and schooling for the child;

• iv. The Mother has always maintained the position that both she and the child will be returning to Canada where they permanently reside;

• v. Whilst the child is physically present in Bermuda, there is not substantial evidence concerning her welfare available in Bermuda;

• vi. There is an active application for the child's custody and access before the Superior Court of Ontario, Canada where A habitually resides, albeit this is disputed by the Father as the position is that he has not been served with any divorce proceedings or any proceedings in relation to A regarding his access to her;

• vii. A does not have a real or substantial connection to Bermuda; and

• viii. Bermuda is not the jurisdiction on the balance of convenience for jurisdiction to be exercised in relation to A.

8. The Mother also asserts that A is being wrongfully retained in Bermuda under section 36O(a) and (b) of the Children Act and that the Father has used ex-parte proceedings to unilaterally block the child's ability to return home to her country of origin and to return to in person learning at school.

9. Further, Ms Cassidy submitted that when determining whether or not to declare or decline jurisdiction, the Court must first determine what the usual or habitual residence of a child is. She relied on the UK cases of Re B...