Petitioner Father’s request to return the parties’ two minor children to Canada was denied after a 2-day evidentiary hearing in the U.S. District Court for the M.D. of Florida, an in-camera interview of the children, and written closing arguments. The family had lived in Florida for a significant time on the Father’s skilled worker visa as a nurse, but when he was convicted of stealing drugs to feed his opioid addiction, he lost his job and got deported, and the entire family returned to Canada, where both parents were nationals (as was their oldest child; the youngest, having been born in the U.S., was a U.S. citizen, and apparently had not acquired Canadian citizenship).  The family was all back in Canada by September 2020, with the children homeschooled and going to the YMCA and church, the family bought a house in New Brunswick in January 2021, and in November 2021, over a year after returning, the Mother brought both children to Florida on what was supposed to be a brief trip (even telling her Canadian employer she would be back in a few weeks) for the youngest to see a doctor (since she was not covered by Canada’s national healthcare).  The Mother then retained the children in Florida.  The Father filed his return petition in October 2022 after Mother had filed for divorce in Florida.  

Several witnesses apparently testified that the parties, when moving to Canada in late 2020, shared the intention that their move was only temporary, and they wanted to then relocate to another country, with the options of Europe, returning to the U.S., or even moving to Panama. The Mother argued that they purchased a home in Canada because of high rent prices (and not to establish any permanency). The children were home schooled using the Florida curriculum. The parties were ultimately living separately in mid- to late-2021, after the Petitioner moved out to live with his girlfriend. The children were both interviewed in-camera by the judge, and both expressed a desire to live in Florida, with the youngest telling the judge that they had been asking their Mother when they could move back.

When the court examined the children’s habitual residence, it used the Monasky v. Taglieri totality of the circumstances test, but in doing so, it seemed to start from the premise that when the family relocated to Canada, the United States, at that time, was clearly the habitual residence, and that the children’s habitual residence never shifted, over the course of over a year, to Canada, therefore remaining the United States during that entire time, despite the Father being deported, the family selling their home in Florida, buying a home in Canada, and having no clear plan for where they would be living next, but for they would be in Canada until they decided when and where. The court concluded that the children never became acclimated to Canada, and the parents’ intentions were never to remain there indefinitely.

Separate from the Petitioner being unable to demonstrate, by a preponderance of evidence, that the children’s habitual residence was Canada, the Respondent was able to prove the mature children’s objection and the grave risk of harm exceptions. The court interviewed the 13-year-old who qualified Florida as her home and expressed her desire to not return to Canada with Petitioner with whom she had a strained relationship. The court concluded that this was a sufficient objection by a mature, un-influenced child. The court also interviewed the 10-year-old, who described Florida as “home” and indicated she had only one friend in Canada and that she and her sister were always asking their mother when they could return to Florida. She told the court that she would not mind visiting Canada, but did not want to live there. The court concluded this was a sufficient objection by a mature, un-influenced child. The legal standard for a mature child’s objection is that a child must have more than a preference for one place over the other and that they must have a particularized objection to going back to their habitual residence. Assuming the court found Canada to be their habitual residence, it is unclear what words the children shared with the judge that would make out a particularized objection.

As for the grave risk, the court concluded that credible evidence existed of the Petitioner’s violent behavior towards Respondent in front of the children, and the children’s Florida therapist testified that they were afraid of Petitioner. The oldest child confirmed this fear in the in-camera interview. The court concluded that returning the children to Canada would exacerbate their trauma and risk their psychological well-being. There was no discussion by the court of potential ameliorative measures in Canada. One final note – the court apparently permitted the children’s therapist to testify, despite their privilege, because the oldest child told the court, in-camera, that she didn’t mind if the therapist testified. Petitioner objected to the therapist testifying.