Case Update (5 May 2025): Giguere v. Tardif; Motion to dismiss request to return children to Quebec denied

The parties are parents to two children, both born in Canada in April 2020 and April 2022 respectively. The entire family are Canadian citizens and have Canadian passports. The family lived in Quebec until December 27, 2022, at which time they moved to the USA on non-immigrant E-2 visas, which cover a maximum stay of five years and require visa holders to renew their I-94 admission numbers by leaving the USA at least every two years. “The parties agreed that they and the [children] would return to Quebec, Canada, at the latest at the end of five (5) years. However, it was also agreed upon by the parties that the [children] would return to Quebec Canada sooner should one of the parties make such a request, for any reason whatsoever.” While the family lived in the USA, they continued holding Quebec-issued drivers licenses, and the family maintained Quebec medical insurance cards. The family traveled to Quebec for every long weekend and holiday during their time in Massachusetts. Beginning in March 2023, the Petitioner Father voiced his wish to return to Canada. He then ultimately agreed to remain in Massachusetts until November 2024. The family purchased a home in Massachusetts, selling their Quebec home “for financial reasons.” The Petitioner Father again, in August 2024, told the Mother that he wanted the children to return to Quebec. On August 26, 2024, he moved back to Quebec, and 2 days later, the Mother informed him that they would not be returning. In September 2024, the Mother initiated divorce proceedings in Massachusetts. The Father filed an answer and counterclaim seeking removal of the children to Quebec. On November 2, 2024, the Mother renewed her’s and the children’s I-94s without the Father’s consent.

First, the Mother sought to dismiss the case, claiming there was no subject matter jurisdiction, because there was no wrongful removal or retention, with the family having lived in Massachusetts for so long, and without a definite return date. The district court dismissed this argument, because the children’s habitual residence goes to the merits of the suit, not subject matter jurisdiction. The Mother also argued a lack of subject matter jurisdiction because of the MA divorce suit and that Quebec has no jurisdiction over child custody determinations in Massachusetts. The court again dismissed this argument because the divorce proceedings have no bearing on the subject matter jurisdiction of a Hague court to hear the petition before it. The domestic disputes are not before this court. Second, the Mother filed a request to dismiss the Father’s petition for failure to state a claim. The court parsed over the alleged facts and felt that they raised questions of fact inappropriate for resolution at this stage of a case, but that are appropriate at a merits stage.

The motion to dismiss is denied.