Jeremy D. Morley

In a Hague Abduction Convention case in the Supreme Court of British Columbia, Canada between two Canadian parents living in Puerto Escondido, Mexico with their young child, arising out of the mother's removal of the child from Mexico to Canada, the mother raised a unique claim. She argued that the child was not habitually resident in Mexico at the time of her removal because she is an indigenous child belonging to the Gitwangak, which is part of the Gitxsan Nation, and that her ties to indigenous peoples, lands and languages in Canada should be prioritized. J.N.C. v. A.G.H., 2024 BCSC 1783, September 27, 2024.[1]

The mother asserted that the Canadian test for habitual residence, set by the Supreme Court of Canada in Office of the Children's Lawyer v. Balev, 2018 SCC 16, should be modified when assessing and determining the habitual residence of an indigenous child so as to give primary weight to the child's indigenous connections. She asserted that the Canadian court should consider the matter through an “indigenous lens,” in light of the fact that indigenous people in Canada have suffered significant harms and intergenerational trauma as a result of colonial and assimilationist policies that disconnected people from their traditions, cultures, values, beliefs, languages, people and traditional territories. She relied further on the United Nations Declarations on the Rights of Indigenous Peoples, Canadian statutory law and common law, and Canada's commitment to reconciliation.

The court disagreed. It held that prioritizing indigeneity over all other factors when determining habitual residence would be inconsistent with the existing Canadian and international caselaw and would undercut the international uniformity required by the Convention. It would also raise many other problems and questions, such as:

·       If Canadian law were to prioritize indigeneity, would this increase the potential for forum shopping?

·       Would it mean that an Indigenous child could never be considered habitually resident in a country other than where the indigenous group resides?

·        Would it effectively require a court to ignore all the other circumstances tying the child to a different country?

·       How would the reformulated approach work if the child were a member of two Indigenous groups in two contracting states or were a member of an Indigenous group whose territory straddles two countries?

The court stated that the Canadian jurisprudence on habitual residence recognizes that courts are to consider the “entirety” of the child's circumstances, that the list of factors is not closed, and that “no single factor” is to dominate the analysis, There is already ample space within the current framework for the court to consider a child's indigeneity and indigenous connections when considering her habitual residence, without reformulating the test.

The court then applied the test of habitual residence set down in the Balev case, which required a consideration of three kinds of links and circumstances: the child's links to and circumstances in Canada; the circumstances of the child's move from Canada to Mexico; and the child's links to and circumstances in Mexico. It determined that the focal point of the child's life was Mexico, and that that was her habitual residence for the purposes of the Hague Convention case.  It considered the child's indigenous connections with Canada as a significant factor alongside other critical factors such as the length of time she had lived in Mexico, her education in Mexico, and her primary social connections in Mexico.

The court further considered the mother's argument that removing the child from British Columbia would result in psychological harm to her in the form of separation from, diminishment or loss of her indigenous connections and culture. The court accepted evidence that the mother considered herself to be a globetrotter and wanted the child to be raised as a global citizen, that nevertheless the mother's own indigenous connections remained strong, and that she also ensured that the child's indigenous connections remained strong regardless of her move to Mexico. It found that there was no evidence that the child's indigenous connections had been impacted or diminished by virtue of living in Mexico, or that returning her to Mexico would present a risk of impacting or diminishing her indigenous connections, let alone resulting in serious psychological harm.

Accordingly, the court ordered that the child should be immediately returned to Puerto Escondido, Mexico.