How has custody of a child been determined between parties who were married in 1989 and 1990 and separated in 1991?

Ontario, Canada

The following excerpt is from Hsu v. Liu, 1999 CanLII 19115 (ON SC):

[13] The case of Vega v. Vega, supra, involved parties who were married in 1989, had a child in 1990 and separated in 1991. Within one month of the separation, the mother commenced an application for custody of the child. An interim order was not made and the application was not heard. In 1993, the father learned that the child had been living with the maternal grandmother in Ecuador since 1991, shortly after the separation. In 1994, the father, who had not responded to the 1990 application by the wife, filed an answer-claim in which he sought custody. The court held that it lacked jurisdiction, dismissed both the application by the wife and the claim by the father and ruled that the child was habitually resident in Ecuador at the time the proceedings were commenced. The court found that, when the child was removed from Canada, she had been living with the mother with the implied consent of the father. In the case before me, it cannot be said that the child was living (as opposed to visiting) in Taiwan with anything approaching the implied consent of the mother.

[14] In Morgan v. Wood, supra, a father and mother resided in Ontario prior to, and after, separation. The mother then announced her intention to move to British Columbia with their child. The father made no objection. One month after the move, the father travelled to British Columbia to visit the child. Upon his return to Ontario, he applied for custody. The court found that the lack of objection by the father to the move by the mother amounted to consent or acquiescence, thereby rendering British Columbia the habitual residence of the child. The court held that it did not have jurisdiction. Once again, the distinguishing feature present in the case at bar is that there was no consent or acquiescence on the part of the mother to the child going to Taiwan for anything other than a visit.

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