A Victoria mother will get to keep her kids in Canada, following a cross-border dispute settled by a Supreme Court of B.C. judgment.
The court case centred around a disagreement between the mother, who resides in Victoria and had been raising her two kids there since 2019, and the father, who retained the children at his Dallas, Texas home from August 2024 to January 2025, against a previous order from B.C. Supreme Court Justice Peter Morley.
On June 28, 2024, a Texas court made orders on parenting time and responsibilities that included a requirement that the children, aged 10 and 7, reside in Texas and be enrolled in a Texas school. However, the order was predicated on the mother relocating to Texas as well, which as a Canadian citizen she was not able to do.
The father made several filings in B.C. but refused to comply with an order to return the children to B.C. in order for them to be heard in August 2024.
The dispute escalated to the point of the father obtaining a temporary restraining order against the mother, without her being advised, followed by the mother filing a Hague Convention petition that deals with child abduction.
The issue was brought back to the B.C. Supreme Court after the mother's successful Hague Convention petition was granted in Texas by Judge Amos Mazzant, ordering the children returned to Canada. It later resulted in the issuing of restraining orders prohibiting any continued proceedings in Texas.
"[Mazzant] finds that the father’s U.S. counsel had knowingly misrepresented his decision to the Texas Courts. Judge Mazzant clarifies that the Texas Court must not address child support, as well as what we would call guardianship, parenting responsibilities, parenting time and contact," said Morley.
The Texas judge found that the children's "habitual residence" was in Victoria, that retention of the children in Texas violated the mother's rights of custody under the laws of Canada, and that the father had struggled with addiction to alcohol and had consumed illegal drugs throughout their marriage.
Justice Morley found that given the children "habitually reside" in B.C. that provincial courts can take jurisdiction over disputes involving the children's interests.
A previous stay ordered by B.C. Justice Sheila Tucker determined that the Texas courts were the preferable forum for resolving all parenting issues between the parties. For Morley, this raised an important question of whether or not she should intervene, which would require a fundamental change in circumstance.
That change in circumstances was found to be the mother's successful Hague Convention petition and the fact that Texas courts could no longer be involved.
"Now, the authoritative statement of the U.S. court system is that Texas has no such jurisdiction and B.C. does. This is a fundamental change, and, since parenting issues must be addressed somewhere, it justifies lifting the stay," said Morely.
In his decision, Morley ordered that the mother must not move the children's place of primary residence from Greater Victoria without consent of the father, the children would attend school in B.C, and that the father would have to facilitate the return of the children's passports and official documents to the mother.
The justice pointed out he was not deciding what arrangement would be in the best interests of the children, but "who should make those decisions – whether the British Columbia courts or those in Texas."
