A father cited an international child abduction agreement in an attempt to get his children returned to him in Florida from Kelowna.
A judge in the BC Supreme Court rejected the application and ruled the boys, 10 and 8, are to stay in Kelowna with their mother.
Justice Douglas Thompson heard the family moved to Kelowna in August from Brooksville, Fla. The parents separated shortly after.
In October, the father moved back to Florida and expected the children to come with him. When the mother refused to let the boys go, the father filed a court action citing the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which alleged the mother had wrongfully removed or retained the children.
The couple were identified in the court ruling by their initials only. The hearing was held by video conference in December. The ruling was made in January and posted on the BC Supreme Court website last week.
In the ruling, the judge said he needed to determine what the children’s “habitual residence” was.
Thompson noted the couple had been planning the Kelowna move carefully for a couple of years, but their marriage was rocky.
The father argued the children were American citizens who had spent most of their lives in Florida.
“Their status in Canada is currently contingent on their mother’s work permit, which expires in October 2023,” Thompson wrote. “The children’s friends, and most of their extended family lives in Florida. The children were sad to leave Florida, and have expressed their wish to return.
“On the other hand, the children’s current immigration status in Canada is consistent with their parents’ longstanding and well-prepared plan to acquire permanent residence in Canada.”
The couple began making plans for the move in 2019. They contacted an immigration lawyer, a Kelowna real-estate agent and the Central Okanagan Economic Development Commission “and confirmed the goal of permanent residency.”
“In October 2020, the parties purchased a dormant Kelowna company, with plans to invigorate its business; the mother was to have a key role in this business,” Thompson wrote.
Shortly after the move, “the father changed his mind.”
The judge acknowledged the children have strong ties to Florida, but said Kelowna was their home now.
“Although the children’s attachments to Florida are more firmly rooted than the connections acquired in British Columbia by mid-October 2021, I have concluded that Kelowna was the principal focal point of their lives by that time. … They understood that Kelowna was their new home and they had begun school in September.
“I accept the mother’s submission that by mid-October 2021 the process of the children’s assimilation into a life in Kelowna was well underway.
“I conclude that the children were habitually resident in Kelowna,” the judge decided.
