Background
The parties, Michael Colbourne (father) and Krisna Lee (mother), had a brief relationship in Vancouver, resulting in the birth of a child in September 2024. The father was not living with the mother and child and was not a legal guardian. In December 2024, the mother returned to her native Philippines with the infant child. The father, upon realizing the mother did not intend to return to Canada, objected to the relocation.
In June 2025, the father initiated legal proceedings in the Supreme Court of British Columbia. He sought an order appointing him as an interim guardian and compelling the mother to return the child to Vancouver. The mother contested the action, arguing that the child was now habitually resident in the Philippines and that the B.C. court lacked jurisdiction, or in the alternative, should decline it in favour of the courts in the Philippines.
The chambers judge found that the child’s habitual residence remained in Vancouver, giving the B.C. court jurisdiction. He appointed the father as an interim guardian but refused to order the child’s return, concluding it was in the child’s best interests to remain in the Philippines with the mother and her family. The father appealed the refusal to order the child’s return, and the mother cross-appealed the findings on jurisdiction and guardianship.
The Court’s Holding
The Court of Appeal for British Columbia dismissed both the father’s appeal and the mother’s cross-appeal, affirming the lower court’s decision in its entirety. The court held that the B.C. court had territorial competence over the child and had correctly exercised its discretion in handling the guardianship and relocation issues.
On the issue of jurisdiction, the court found a clear statutory basis in s. 72(2)(b)(ii) of the B.C. Family Law Act. This provision defines a child’s habitual residence as the place where the child most recently resided with one parent with the implied consent of the other parent. Since the father never consented to the child living in the Philippines, the last place the child resided with his implied consent was Vancouver. Therefore, Vancouver remained the child’s habitual residence for legal purposes. The court also agreed that the Philippines was not a “clearly more appropriate forum,” upholding the decision not to decline jurisdiction.
Despite confirming jurisdiction and the father’s status as a guardian, the court refused to order the child’s return. The analysis centered on the best interests of the child, which is the paramount consideration. The court found that ordering a return would disrupt the child’s life significantly. The child had only ever been cared for by the mother, was in a stable and loving home with extended family in the Philippines, and had no existing relationship with the father. The court distinguished the situation from a “wrongful removal” that interferes with an established parent-child bond, noting that such a bond did not exist here. The goal was to facilitate a future relationship, not to disrupt the child’s current stability.
Key Takeaways
- A British Columbia court can retain jurisdiction over a child moved internationally if the relocation occurred without the consent of a biological parent, even if that parent was not a legal “guardian” when the child was moved.
- The legal concept of “habitual residence” is not automatically altered by a parent’s unilateral decision to move a child to another country. It is determined by statutory rules that look to the consent of the parents.
- Even where a court has jurisdiction over a child who was moved without consent, it will not automatically order the child’s return. The paramount consideration is the child’s best interests, which may favour stability with the primary caregiver over returning to the original jurisdiction.
Why It Matters
This decision provides important clarity on how British Columbia courts handle complex international child custody disputes, especially those involving an infant who has not yet formed a bond with one parent. It reinforces the two-step analysis: first, establishing jurisdiction based on the child’s habitual residence, and second, determining the appropriate order based on the child’s best interests. The ruling confirms that under the B.C. Family Law Act, the rights of a biological “parent” are relevant to determining jurisdiction, even before that parent has been named a legal “guardian.”
For legal practitioners, this case underscores that winning the jurisdictional argument does not guarantee a return order. Courts will prioritize a child’s stability and the connection to their primary caregiver above all else. The decision serves as a caution that in cases of unilateral relocation, the practical realities of the child’s life—their age, bonds, and current stability—will be decisive in the court’s final determination, which may mean leaving the child in their new location while seeking to facilitate contact with the other parent.