Court File and Parties

CITATION: Cawdrey v. Cawdrey, 2011 ONCA 29

DATE: 20110114

DOCKET: C52954 and C52955

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Simmons and Watt JJ.A.

BETWEEN

Glenn Antony Cawdrey

Applicant (Respondent in appeal)

and

Elaine Jennifer Cawdrey, a.k.a. Elaine Jennifer Sitch

Respondent (Appellant)

Counsel: Dennis Vansickle and William Shanks, for the appellant Kristen L. Bucci, for the respondent

Heard by Videoconference and endorsed: January 11, 2010

On appeal from the order of Justice Douglas Shaw of the Superior Court of Justice, dated October 20, 2010.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals from an order under The Hague Convention requiring that a child be returned to Australia so that the Australian courts can assume jurisdiction over custody and access issues. The trial judge determined that the child was habitually resident in Australia, applying settled jurisprudence from this court and taking account of the following factors:

• declarations made by the appellant to the Australian government that she intended the family home to be in Australia;

• actions by the appellant indicating she had resided in Australia for an appreciable period of time with an intent to stay, even if temporarily, for family purposes;

• circumstances relating to the child that pointed to a finding that the family had formed a settled intention to stay in Australia as a family even if their stay was not necessarily permanent.

[2] The trial judge concluded that it was unnecessary that the respondent show that "[the appellant] intended to reside permanently in Australia, never to return to Canada." He found that such an interpretation would be inconsistent with this court's decision in Ellis v. Wentzell-Ellis, 2010 ONCA 347, [2010] O.J. No. 1987. We agree with that conclusion. Moreover, we are satisfied that the trial judge’s conclusion that the child and his family were habitually resident in Australia was fully supported by the evidence and is consistent with the existing jurisprudence from this court.

[3] We are not persuaded that the trial judge erred in fixing the terms of the undertakings relating to the child’s return to Australia. The questions of ongoing spousal support and child support for the other child are under reserve in the Superior Court. It will be for the courts in Australia to deal with ongoing support for the child ordered returned.

[4] The appeals are therefore dismissed. Costs of the appeals are to the respondent on a partial indemnity scale fixed in the amount of $5,000 inclusive of disbursements and applicable taxes.