The applicant sought the return of her two-year-old son, Flynn, from the respondent under the Hague Convention, after the respondent removed the child from Denmark to Ontario without the applicant's consent.
The respondent relied on a "parenting plan" agreement, signed prior to their move to Denmark, which purported to grant him full custody and allow him to leave Denmark with the child.
The court found the agreement invalid as a cohabitation agreement dealing with custody, contrary to the Family Law Act, and also found it was signed under duress due to the applicant's desperate financial and career circumstances.
The court further ruled that the agreement could not displace the factual determination of habitual residence under the Hague Convention.
Based on the parties' settled intention to reside in Denmark for the applicant's two-year employment contract, the respondent's actions to establish EU residency, and the family's routine in Denmark, the court determined that Flynn's habitual residence was Denmark.
Consequently, the child's removal was wrongful, and an order was issued for Flynn's forthwith return to Denmark.
