In Zahariev v. Zahariev 2025 BCCA 35 the British Columbia Court of Appeal considered a Hague Convention case which featured a contest between Bulgaria’s District Court and the British Columbia Supreme Court, in relation to the parties’ infant daughter, Neva.
Neva’s mother, Yana Zahariev, and father, Filip Zahariev, met in 2021 and married in November 2022, when she was two months pregnant and residing in Bulgaria. Yana, a dual Canadian and Bulgarian citizen, was born in Bulgaria, spending the first ten years of her life there. At the age of 19, she returned to Bulgaria where she met Filip.
By agreement with her husband, Yana travelled from Bulgaria to British Columbia to give birth to the parties’ first child in February 2023, ostensibly returning to Bulgaria shortly after the birth, which was on May 17, 2023.
When Yana Zahariev determined that she wished to remain in British Columbia with the child, Filip invoked the jurisdiction of the Bulgarian court seeking the return of Neva to Bulgaria.
Meanwhile, the British Columbia court proceeding began in February 2024 after attempts at reconciliation had failed. Yana brought an application for a protection order against her husband which was dismissed; however, the court made an order that Neva was not to be removed from the jurisdiction of the BC Supreme Court.
A short time later Filip filed an application with the Bulgarian Regional Court for a divorce and custody of Neva. The court found that Neva was habitually resident in Canada and declined to take jurisdiction, but Filip prevailed in the appeal court in Bulgaria, where Neva was declared to be habitually resident in Bulgaria.
In June 2024 Filip brought a Hague Convention application in British Columbia, which was dismissed in early September 2024. The lower court found that Neva was habitually resident in British Columbia and refused to order her return to Bulgaria.
The appeal court ruling from Bulgaria, which declared Neva habitually resident in Bulgaria, was released in mid-September 2024. Although the earlier British Columbia Supreme Court’s reasons were brought to the attention of Bulgaria’s appeal court, there was no mention of the BC order, which ruled that BC was Neva’s habitual residence.
Filip, acting in person, brought his appeal from the Hague dismissal order to the British Columbia Court of Appeal, citing the following grounds of appeal:
- The chambers judge erred in assessing the credibility of Yana;
- The process was procedurally unfair;
- Ineffective assistant of counsel;
- Placing undue reliance on the lower court decision in Bulgaria;
- An incorrect interpretation of “habitual residence”;
- Asserting that judicial comity required deference to the Bulgarian lower court’s order.
The evidence at the Hague Convention application consisted of affidavit material and documentary evidence. The starting point was that the parties agreed that they had discussed that the birth would be in British Columbia, but that was the only issue where they found agreement. Filip deposed that the plan had been that after Neva’s birth Yana would return to Bulgaria, where he was the owner and chef at a very successful fine dining restaurant.
Yana maintained that the parties had discussed their mutual desire to move to Canada and open a restaurant, based primarily on the negative aspects of life in Bulgaria and the promising possibility of raising their child in Canada. She buttressed her evidence with copies of text messages where Filip agreed with his wife about a move to Canada. However, he deposed that those messages occurred at times when he was frustrated and denied they reflected his intentions. Yana was also able to provide the court with evidence that Filip had applied for permanent residence status in Canada. One of his text messages read: “We’re definitely not going to live in Bulgaria.”
Filip countered with affidavits from four friends and relatives, including Yana’s father, who confirmed that Yana’s travel to BC was to give birth, but not to stay in BC.
Interestingly, the Bulgarian courts relied on the 1996 Hague Convention which had been ratified by them, while the proceeding in Canada was pursuant to the 1980 Hague Convention, as Canada had not ratified the more recent Convention and is not bound by the 1996 update.
The major difference between the two Coventions is that the 1996 Convention applies to children up to 18 years of age, while the earlier version only applies to children 16 and under. In addition, the most recent Convention includes sections not found in the earlier version, including sections broadly covering civil protections for children and their property, focusing beyond the issue of abduction. Notably, the 1996 Convention affirms the primacy of the 1980 Convention.
The appeal court dismissed Filip’s appeal saying that the appellant’s challenge to the lower court’s findings of credibility was an attack on findings of fact, which are in the sole discretion of the court, and will only be the subject of intervention on appeal if there is a demonstrated error in principle, an arbitrary assessment, or is based on irrelevant criteria.
With respect to the appellant’s allegation of procedural unfairness, the appellant grounded his assertion in the fact that witnesses were not cross-examined on their evidence. He stated that his counsel advised him that cross-examination was not permitted, leading to his charge that he was ineffectively represented by counsel. The court acknowledged that this ground of appeal is generally advanced in criminal cases and remarked that in civil cases it is a legitimate ground of appeal in the “rarest of cases”, relying on Nguyen v. 1108911 BC Ltd. 2024 BCCA 48 at para. 36.
With respect to the appellant’s suggestion that the lower court in BC unreasonably relied on the overturned lower court decision in Bulgaria, the appeal court determined that the lower court’s reason did not factor into its decision .
Citing Office of the Children’s Lawyer v Balev 2018 SCC 16, the court considered Filip’s argument that the Bulgarian appeal court was owed deference based on judicial comity. However, the court noted that the decision in the appeal court in Bulgaria was based on the 1996 Convention, which specifically recognizes the primacy of the 1980 Convention.
Further, the Bulgarian appeal court’s analysis of habitual residence did not accord with the Supreme Court of Canda’s espousal of a hybrid approach to the issue, rather they treated Yana’s marital residence in Bulgaria and Neva’s young age as determinative of habitual residence.