D.L.P. v. S.-J.A., 2010 MBQB 225

• Judge: Johnston, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 07, 2010
• Jurisdiction: Manitoba
• Citations: 2010 MBQB 225;(2010), 260 Man.R.(2d) 10 (QBFD)

D.L.P. v. S.-J.A. (2010), 260 Man.R.(2d) 10 (QBFD)

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. OC.034

D.L.P. (applicant) v. S.-J.A. (respondent)

(FD 10-01-95503; 2010 MBQB 225)

Indexed As: D.L.P. v. S.-J.A.

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Johnston, J.

October 7, 2010.

Summary:

In July 2010, a 10 year old child arrived in Winnipeg for a summer visit with her paternal grandmother. On September 1, 2010, the grandmother applied for guardianship of the child. Manitoba Justice sought to intervene on behalf of the child's mother, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, on the basis that the mother was habitually resident in Belize. Therefore, it alleged that the matter had to be transferred there.

The Manitoba Court of Queen's Bench, Family Division, dismissed the application. The court concluded that the mother, and therefore her daughter, were not habitually resident in Belize.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1961.1

Custody and access - Child abduction legislation - Habitual residence - In July 2010, a 10 year old child arrived in Winnipeg for a summer visit with her paternal grandmother - On September 1, 2010, the grandmother applied for guardianship of the child - Manitoba Justice sought to intervene on behalf of the child's mother, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, on the basis that the mother and child were habitually resident in Belize and the matter should be transferred there - The child's father was deceased - The child had accompanied her mother and family to Belize on December 1, 2009 - The child's "passport status" changed from "visitor" to "student" upon her enrolment in elementary school from January to June, 2010 - The mother made inquiries respecting the child's re-registration in school for September 2010 - All members of the family unit were Canadian citizens - The mother had a lengthy history of residence changes in Canada and during the time she was in Belize - In June 28, 2010, the mother "certified as true" on her application for an Ontario driver's licence that her "residence" was a specific location in Ontario - The mother received Child Tax Credit and GST rebates (available only to recipients who asserted they were Canadian residents) directly deposited into an account with a Canadian chartered bank in Ontario - The Manitoba Court of Queen's Bench, Family Division, dismissed the application - The court concluded that the mother, and therefore her daughter, were not habitually resident in Belize.

Cases Noticed:

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81, refd to. [para. 9].

Mahler v. Mahler (1999), 143 Man.R.(2d) 56 (Q.B. Fam. Div.), affd. (2000), 142 Man.R.(2d) 319; 212 W.A.C. 319 (C.A.), refd to. [para. 9].

Wentzell-Ellis v. Ellis (2010), 262 O.A.C. 136; 2010 ONCA 347, refd to. [para. 9].

M.K.-W. v. M.S.W. (2004), 188 O.A.C. 376; 242 D.L.R.(4th) 385 (C.A.), refd to. [para. 9].

Riedel v. Thomopoulos-Danilov, [2005] O.T.C. 978; 21 R.F.L.(6th) 167 (Sup. Ct.), refd to. [para. 9].

Aulwes v. Mai (2002), 204 N.S.R.(2d) 349; 639 A.P.R. 349; 2002 NSSC 128, affd. (2002), 209 N.S.R.(2d) 248; 656 A.P.R. 248; 2002 NSCA 127, refd to. [para. 9].

New Brunswick (Attorney General) v. L.W.H. (2010), 365 N.B.R.(2d) 130; 939 A.P.R. 130; 2010 NBQB 229 (Fam. Div.), refd to. [para. 9].

Brooks v. Brooks (1997), 124 Man.R.(2d) 161; 35 R.F.L.(4th) 12 (Q.B. Fam. Div.), refd to. [para. 9].

McKee v. McKee, [1951] 1 All E.R. 942; [1951] 2 D.L.R. 657 (P.C.), refd to. [para. 9].

Ramsay v. Ramsay (1977), 13 O.R.(2d) 85; 70 D.L.R.(3d) 415 (C.A.), refd to. [para. 9].

Karpenko v. Leendertz, 2010 WL 3326131 (3rd Cir. Pa. Ct. App.), refd to. [para. 9].

J., Re, [1990] 2 A.C. 562; 125 N.R. 145 (H.L.), refd to. [para. 17].

Counsel:

Gerald S. Ashcroft, for the applicant;

Janet Sigurdson, for the respondent.

This application was heard by Johnston, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following decision on October 7, 2010.