Where the shared intention of the parties ended at the moment of a break-up and the child was habitually resident at the time of separation, what is the test for retaining the child under the Convention of Human Rights?
British Columbia, Canada
The following excerpt is from C.M. v. J.M., 2015 CanLII 82623 (BC SC):
Article 3 of the Convention focuses on the point in time where the “child was habitually resident immediately before the removal or retention”. Where the shared intention ends at the moment of a break-up or separation, the court must look to the habitual residence of the child immediately prior to the removal or retention and as of the last time the parties shared an intention. In Allibhoy v. Tabalujan, 2015 BCSC 37, the court found that the habitual residence at the time of the break-up was that of the child just prior to that break-up. Mr. Justice Voith states at paras. 34 and 35:
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