[Canada][Habitual residence] [Petition denied]
In Watson v Watson 2023 WL 1967587 (M.D. Florida.2023) the court denied the petition for the return of the parties’ two minor children—thirteen-year-old B.V.W. and ten-year-old G.L.W to Canada. Petitioner and Respondent met in 2001 while both parties were residing in Canada. Petitioner is a Canadian citizen, and Respondent is a dual citizen of Poland and Canada. The parties married in June 2008 in Florida. It was at that time that the parties decided that they wanted to move to Florida. The parties returned to Canada from their honeymoon and began researching immigration options. Shortly thereafter, while still living in Canada, the parties welcomed the birth of their first child, B.V.W., in 2009. After B.V.W.’s birth, the parties learned that they could legally move to the United States if Petitioner became a “skilled worker,” which he could do by becoming a nurse. The parties thus began making plans to move to Florida so Petitioner could attend nursing school on a student visa. In April 2010, after selling their house in Canada, the parties purchased a home in North Port, Florida. The following year, when B.V.W. was approximately eighteen months old, the family permanently relocated to North Port, and Petitioner began nursing school. In 2012, Respondent gave birth to the parties’ second child, G.L.W., in Florida. Petitioner subsequently graduated from nursing school and obtained a visa that permitted the family to continue living in Florida while Petitioner worked as a nurse. B.V.W. and G.L.W. were well-adjusted to their North Port community. B.V.W. and G.L.W. had multiple friends at church and both schools, and they actively participated in social activities, such as choir, summer camp, and a Christian organization similar to the Girl Scouts of America. The family also had seasonal relatives in the North Port area, including Respondent’s aunt who testified to spending time with the children and their friends. Petitioner began to steal controlled substances from the hospital where he worked. When confronted by his employer, Petitioner admitted to diverting controlled substances for personal use and was immediately placed on leave. Petitioner’s diversion of controlled substances led to his February 2018 arrest. In 2019, Petitioner was sentenced to sixty days in jail followed by four years of probation. Petitioner voluntarily relinquished his nursing license., In June 2020 he was detained by Immigration and Customs Enforcement (“ICE”) at a probation meeting. ICE initiated deportation proceedings against him. Petitioner testified that the couple “fought tooth and nail for [him] to remain in the United States” before accepting that he had to return to Canada. Consequently, the parties began sharing their plans to relocate to a new country. Mrs. Gritton testified that the parties clearly expressed their intentions to live in “any country other than Canada.” Similarly, both Ms. Tetena and Amanda Doucette—another family friend of many years—recalled separate instances in which both Respondent and Petitioner discussed plans of moving out of Canada after a temporary stay. In July 2020, Petitioner returned to Canada after accepting ICE’s offer of voluntary departure. Following the sale of the family’s North Port home, Respondent and the children reunited with Petitioner in Canada in September 2020. For a few months, the family resided with Respondent’s mother in Ontario. The parties then moved 950 miles east and purchased a home in Moncton, New Brunswick, in January 2021. Upon moving to Moncton, Petitioner began working as a personal trainer, and Respondent worked at a pet store as a dog groomer. In Moncton, the children continued to witness domestic violence at home. In October 2021, about seven months after a physical altercation, Petitioner moved out of the family’s Moncton. In late November 2021, Respondent told Petitioner that she needed to take the children to the United States so that G.L.W. could attend an appointment with an endocrinologist in Florida. Petitioner testified that he consented to the trip, which he believed would only be for a few weeks, and helped Respondent load the car. At some point around this time, Respondent emailed Petitioner’s aunt, stating that she was taking the children to Florida for the aforementioned appointment and to “regroup and recover.” Respondent and the children crossed the Canadian-United States border on November 25, 2021. After attending G.L.W.’s endocrinologist appointment in Florida on November 30, 2021, Respondent and the children stayed in the North Port area with Respondent’s friends and aunt. Though Respondent purportedly told her Moncton employer that she would return to work on December 17, she did not return to Canada. Rather, about a week after leaving Canada, Respondent called Petitioner to tell him that she and the children would be permanently staying in Florida. Respondent and the children moved into a rental home in North Port in January 2022. In October 2022, Respondent filed a petition for dissolution of marriage in Lee County. One month later, Petitioner filed his present Petition for the return of B.V.W. and G.L.W. to Canada. She and the children have since moved to Punta Gorda in Charlotte County.
The district court found
that B.V.W. and G.L.W. were habitual residents of the United States prior to
moving to Canada in September 2020. At that time, eleven-year-old B.V.W. had
lived in Florida since she was eighteen months old, and eight-year-old G.L.W.
had lived in Florida since birth. The children attended schools and a church in
North Port, and they actively participated in multiple community activities.
They also had several friends and some extended family members in the North
Port area. B.V.W. and G.L.W. were habitual residents of the United States at
the time of their move to Canada. Petitioner therefore had the burden of
establishing by a preponderance of the evidence that the children’s habitual
residence changed from the United States to Canada by the time Respondent
removed the children to the United States in late November 2021. The Court found
that Petitioner has not carried this burden. Credible testimony at the hearing
established that the parties did not share a settled intention to make Canada
the children’s new habitual residence. Neither Respondent nor Petitioner
planned for the family to remain in Canada. Though the parties purchased a home
in Moncton in January 2021, Respondent testified that this decision was not
reflective of an intent to stay in Canada but, instead, high rental prices.
This testimony was compounded by that of Ms. Doucette, who recalled Petitioner
stating that the family’s move to Moncton would be temporary and that the
family planned to move to Europe or find a way back to the United States.
Petitioner’s own testimony revealed an intent to leave Canada. Petitioner
testified that, even after moving to Moncton, the parties discussed relocating
to Europe or Panama. On this record, there was no shared intention to change
the children’s habitual residence to Canada. In the absence of a shared settled
intention, the Court the that the
objective facts do not “unequivocally point to a change in the [children]’s
relative attachments between the two countries” such that the children’s return
to the United States from Canada in 2021 was “tantamount to changing the
[children]’s family and social environment.” See Chafin, 742 F.3d at 939. Credible
testimony revealed that B.V.W. and G.L.W. did not become acclimated to Canada
to the degree that Canada could be said to have replaced the United States as
the children’s family and social environment. The children’s 2021 return to the
United States was not tantamount to “changing the [children]’s family and
social environments.” See Chafin, 742 F.3d at 939. Rather,
the children’s return to the United States was best characterized as a return
to their habitual residence. After living in Ontario for a few months and New
Brunswick for less than a year, B.V.W. and G.L.W. moved back to the same
Florida community—including their school, church, friends, relatives, and
activities—that they had known for nearly a decade. Based on the foregoing, the
Court concluded that Petitioner failed to show by a preponderance of the
evidence that B.V.W. and G.L.W. were habitual residents of Canada at the time
of their removal or retention. The totality of the circumstances established
that the children did not develop a family and social environment in Canada
sufficient to constitute a change of their habitual residence from the United
States to Canada.
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