Jane North

The respondent mother sought to stay the Court of Appeal's order requiring the return of a five-year-old child to the United Kingdom pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, pending her application for leave to appeal to the Supreme Court of Canada.

The father had successfully appealed a Superior Court decision that dismissed his application for the child's return, on the basis that the father had consented to or acquiesced in the child's retention in Canada.

The Court of Appeal found that the application judge erred in conflating consent to relocation with consent to retention.

The motion judge dismissed the mother's stay motion, finding no serious issue to be tried, no irreparable harm, and that the balance of convenience favoured the child's return to the jurisdiction of habitual residence.

The decision concerns a Hague Convention application by Mr. Patel for the return of his children to Morocco after their removal to Canada by Ms. Hamdaoui.

The court found that the children were habitually resident in Morocco at the time of removal, that Mr. Patel had and was exercising rights of custody, and that no defences to return (consent/acquiescence or grave risk of harm) were established.

The court ordered the return of the children to Morocco and set out undertakings and directions for the parties.

The Applicant sought the return of the children to Singapore pursuant to the Hague Convention, arguing Singapore was their habitual residence.

The Respondent contended the children's habitual residence was Ontario, asserting the move to Singapore was temporary for family support during pregnancy.

The court applied the hybrid approach to habitual residence, considering all circumstances including parental intentions and the children's connections.

The court found that the parties' intention was always to return to Canada, supported by evidence such as storage of belongings and daycare registrations.

The Hague application was dismissed, and the Ontario court was found to have jurisdiction over custody and access, as the children were habitually resident in Canada.

The Applicant sought an advance equalization payment or interim disbursement of $100,000 and an order for outstanding disclosure.

The court dismissed the financial requests, finding the Applicant had not demonstrated need, had prior funds unaccounted for, had surplus income, engaged in significant discretionary spending, and made no efforts to seek employment.

The court also found insufficient evidence to support the requested amount.

Regarding disclosure, the court found the Respondent had largely complied since retaining counsel, but ordered further responses on two specific items and a status update.