International Family Law – English v McCurdy

Photo by Wolfgang Zenz

railtown law vancouver international family law

Railtown Law successfully argued before the BC courts another international family issue relating to “real and substantial connection”.

In English v McCurdy (2019), the relationship history was somewhat complicated.

One partner conceived the child by artificial insemination before she began an intimate relationship with the claimant in Arizona. The parties then lived together for a few years in Arizona, where the respondent worked, before travelling to BC where they married and then resided for just over 3 years before moving back to Arizona.

The mother of the child was Canadian, the claimant was American. The child had dual citizenship.

After moving back to Arizona, the mother of the child served divorce papers on the claimant who alleged that the Arizona court did not have jurisdiction over the divorce petition.

The claimant flew to BC and started a family law claim seeking support, custody of the child and a host of other remedies. From that moment onward, the claimant attempted to develop evidence to show a “real and substantial connection” between herself and BC and to show that the child was habitually resident in BC at the time the claimant applied for support.

British Columbia family law, including Canadian divorce law, is much more favourable to a parent/spouse in the claimant’s situation than is the corresponding law in Arizona.

Unfortunately for the claimant, most of her substantive evidence related to the time period after the Arizona divorce petition was filed and, indeed, even after she had filed her claim and application to have the child returned to BC.

In this case too, there were a number of court appearances. In the end, the BC judge agreed that there was an insufficient connection between BC and the claimant and that the child was not habitually resident here on the date the claimant had filed her application.

The judge found that there were far more factors connecting the claimant to Arizona than to BC. This is some of what she said:

[83] There are many indicia of Ms. English’s continuing association to the U.S. well into 2018, as was found by Judge Butler: for 2015 and 2016, Ms. English paid taxes in the U.S. and filed tax returns. In those returns, she declared her home address as being in Blaine, WA. Ms. English maintained her entitlement to U.S. social security. Dr. McCurdy paid for her health insurance in the U.S. where she has been treated. Ms. English continues to be registered to vote in the U.S. and does vote there. Ms. English has worked in and from Tucson. As of at least June 21, 2018, she continued to show her location on her Facebook (which she later deactivated), Linkedln pages, Twitter account, and her own biography used in various articles, as being in Tucson. Ms. English still holds an Arizona driver’s licence that she renewed in July 2018 and it does not expire until June 23, 2028. It shows her physical address as Tucson. Ms. English used Dr. McCurdy’s Blaine office address as her address when they came to Canada in 2014 and repeatedly since that time, when crossing the border. Ms. English had numerous counselling sessions in Tucson between August 10, 2017 and April 11, 2018. There is no evidence that she has ceased counselling in Arizona.

[84] To the contrary, to April 2018, Ms. English’s personal connections to Canada or B.C. were nominal at best. She has never paid taxes in Canada. She never applied to immigrate to Canada or become a landed immigrant here. She was not allowed to work in B.C. under a work permit. She never had a bank account in B.C. Again, her only “connection” to Canada was her marriage to Dr. McCurdy who worked here and her care for the Child while he was in B.C.

This review of the evidence by the judge is a good indication of factors that can be important in the determination of which court has or should take jurisdiction in a family dispute with international aspects.

If you have questions about your own situation, email us at info@railtownlaw.com.

Legal Disclaimer: The general information provided in this blog does not constitute legal advice to you and is provided strictly for informational purposes only on an “as is” basis. Legal advice pertaining to your particular situation can only be provided to you if we have met with you personally to obtain all pertinent background information necessary to give you a formal legal opinion. If you wish to have formal legal advice about your matter, please make an appointment with us for a consultation. No lawyer-client relationship is created by your use of our blog or our website.

Although Railtown Law intends the contents of its blog and website to be accurate, complete and current, and does it best to ensure that it is, Railtown Law does not promise or guarantee that it is. Railtown Law is not responsible and will not be liable for any errors, omissions or delays in this information or any losses, injuries or damages arising from its display, use or any links provided. Railtown Law welcomes feedback from its readers noting any errors or omissions in the information provided in its blog or on its website.

SHARE THIS POST

Share on facebook
Share on linkedin
Share on twitter

YOUR LEGAL SOLUTIONS START HERE

At Railtown Law we can help you with your legal matters in a variety of areas and also help you to take a pro-active approach to various legal issues you may face.

Railtown has been acquired by YLaw

You will now be entering Railtown’s website, a division of YLaw