Case Update (26 Aug 2025): Giguere v. Tardif; Children who had lived for 2 years in MA were still habitually resident in Canada

The parties are parents to two children. The Petitioner Father is seeking the children’s return to Quebec using the Hague Abduction Convention. The children were both born in Quebec and the entire family were Canadian citizens. In or around November 2022, the parties and their children were granted E-2 non-immigrant visas, valid up to five years with possible room for extensions, to reside in the USA to work with Respondent Mother’s family business, which was expanding from Canada to Massachusetts. The family entered the USA on November 11, 2022 to obtain I-94 numbers, which require renewal every two years (set to expire on November 10, 2024). The family then left Canada in late December 2022, where the parties, purportedly, intended to move to Massachusetts on a trial basis to help launch the Respondent’s family’s business. Their initial move was punctuated with only taking a week’s worth of belongings, and leaving most of their items in the house they owned in Quebec. The children, at the time of the move, were ages 2.5 years and 6 months old. Their first MA residence was in the Respondent Mother’s parent’s apartment.

While in MA, the company did not pay for the Petitioner to have health insurance in the USA. He only interacted with others in English in limited capacity. Respondent Mother handled all the official family communications. In May 2023, the family sold their house in Quebec. To move out from the in-laws’ home, the family needed to apparently sell their Canadian residence because they could not afford two residences. They decided to purchase a home in MA, although Petitioner said it was as an investment. They purchased a condo in MA in September 2023. They were then discussing a future move, because the condo did not have the space they originally envisaged. Their mortgage application listed them as non-immigrant aliens. In March 2024, the Petitioner expressed his desire to relocate the family back to Canada by November 2024 (the date the I-94s expired). In this timeframe, the parties also filled out paperwork to determine their residency status with the Canadian government for tax purposes. The hand-written draft form (signed by Petitioner) and the final typed form (signed by Respondent) varied dramatically, seemingly indicating Petitioner was not planning on leaving Canada permanently. The family apparently, among other things, also kept ties with those in Canada, while making relatively limited connections to those in MA. While the children have doctors in MA, they did see a doctor in Canada and consistently maintained their Canadian health insurance. In or around mid-August 2024, the Petitioner told Respondent, and then memorialized in a letter, he desired to return to Canada. On August 20, Petitioner left for Canada, and indicated a belief that the family would return in November when their I-94 numbers expired.

Because of the children’s young age at the time of their move to MA, with the oldest being 2.5 years, the court looked at the parents’ shared intentions as to where their children would be habitually resident. The court concluded that nothing in the record indicated that the parties shared an intention to abandon Canada as the children’s place of habitual residence and intended to acquire the USA as a new one. It was clear, particularly in or around later 2023, that their intentions were at odds as to whether to remain in MA. The court believed the Petitioner has ever expectation that the family would return at the time their I-94 numbers expired. He believed that their I-94 numbers could not be renewed without his consent. In fact, their residency status as nonimmigrants in the USA was a large factor for the court. They were in the USA temporarily, and the numbers were set to expire. The Respondent entered the USA on a visa where she attested that she intended to return to Canada after her temporary stay. If the parties were divorced, the Petitioner, who was a dependent on her visa (a visa that was dependent upon her job with her parents’ Canadian company), would cease to exist. Finally, even though the children had resided for significant time in MA, most of their ties remained in Quebec. The District Court concluded that Canada remained the children’s habitual residence.

The only exceptions argued were consent and acquiescence, and the court was not persuaded that either applied.

The Respondent Mother has lodged an appeal.