What is the test for establishing “habitual residence” under Article 3 of the Convention on Human Rights?
British Columbia, Canada
The following excerpt is from Suarez v. Carranza, 2008 BCSC 1187 (CanLII):
Chan v. Chow, 2001 BCCA 276, 90 B.C.L.R. (3d) 222, is the leading case in British Columbia on the issue of how to determine “habitual residence” for the purpose of Article 3 of the Convention. As the term is not defined in the Convention, Proudfoot J.A. reviewed decisions from other jurisdictions and concluded as follows at para. 32: 1) The question is a question of fact to be decided by reference to all the circumstances of the case. 2) An "habitual residence" is established by residing in a place for an appreciable period of time, with a "settled intention." 3) A child's "habitual residence" is tied to the habitual residence of his or her custodian(s).
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