Court File and Parties

Court File No.: D80220/15

Date: 2015-04-09

Ontario Court of Justice

Between:

Karla Brown

Adela Crossley and Theodora Oprea, for the Applicant

Applicant

- and -

Justin Scott Pulley

Respondent

Christine Marchetti, for the Respondent

Heard: March 24-25 and April 2, 2015

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] On the evening of January 27, 2015, the applicant (the mother) took the parties' two children, ages 8 and 5 (the children) from their residence in North Carolina and drove through the night, arriving in Toronto on January 28, 2015.

[2] The respondent (the father) asks this court for an order requiring the children to be returned to North Carolina. He seeks this order pursuant to the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). In the alternative, pursuant to section 41 of the Children's Law Reform Act (the Act), he asks the court to recognize and enforce a court order made in the General Court of Justice, District Court Division, State of North Carolina, on February 16, 2015 (the North Carolina order), awarding temporary custody of the children to him and requiring the mother to return the children to North Carolina. Lastly, the father asks the court to order the mother to return the children to North Carolina pursuant to section 40 of the Act, and asks for specific terms to facilitate enforcement of this order.

[3] The mother claims that due to the father's severe physical and emotional abuse of her, there would be a grave risk that returning the children to North Carolina would expose them to physical or emotional harm or otherwise place them in an intolerable position. The mother asks the court to dismiss the father's claims. She asks the court to assume jurisdiction of this case pursuant to section 23 of the Act and seeks temporary custody of the children, a temporary restraining order against the father and a temporary order preventing the father from removing the children from Ontario.

[4] The father asks the court to find that it has no jurisdiction to hear the mother's application and order that it be stayed.

[5] The issues in this case are as follows:

a) Does the Hague Convention apply? In particular:

i) Did the mother wrongfully remove the children from North Carolina?

ii) Was the removal of the children by the mother in breach of rights of custody attributed to the father, an institution or any other body, either jointly or alone?

iii) At the time of removal or retention, were those rights actually exercised, either jointly or alone, or would have they been so exercised but for the removal or retention?

b) If the Hague Convention applies to this case, would there be a grave risk that the children's return to North Carolina would expose them to physical or psychological harm or otherwise place them in an intolerable position?

c) If the Hague Convention is not applicable, should the court recognize and enforce the North Carolina order? In particular:

i) Was the mother given reasonable notice of the commencement of the North Carolina proceeding?

ii) Was the mother given an opportunity to be heard by the North Carolina court?

iii) Should the court supercede the North Carolina order because the children would suffer serious harm if returned to the father or removed from Ontario?

d) Should this court accept jurisdiction of this case pursuant to section 23 of the Act, based on a finding that the children would suffer serious harm if returned to the father or removed from Ontario?

e) If this court decides not to accept jurisdiction of this case pursuant to section 23 of the Act, should it make interim orders facilitating the return of the children to North Carolina, and if so, what orders should be made?

Part Two – Background Facts

[6] The parties were married in North Carolina on December 1, 2000. They lived together there until they separated on January 13, 2015.

[7] The mother is 35 years old. She was born in Canada and is a Canadian citizen. Her family moved to North Carolina when she was a teenager. The mother has no immigration status in the United States. She has stayed there illegally.

[8] The father is 34 years old and is an American citizen.

[9] The two children are the children of the marriage – they are the parties' only children together. They were both born in North Carolina. Skyler recently turned eight years old. There were no concerns expressed about her development. Mason is five years old. The parties believe that he is autistic, although he has not yet been formally diagnosed as such.

[10] The mother had a very troubled childhood. She had a dysfunctional relationship with her family and left home at a young age, ending up in foster care. As a teenager and as a young adult she had drug, alcohol and mental health issues.

[11] The mother was hospitalized in 2001, after an alleged suicide attempt. Hospital records filed at the hearing indicated that the mother reported that this was her fourth suicide attempt since she was 11 years old. The mother subsequently had out-patient treatment at the hospital for about seven months.

[12] The mother has another child (now 18 years old) from a different relationship. Her mother (the maternal grandmother) obtained custody of this child in 2000, with the consent of the mother. The mother became estranged from the maternal grandmother and had minimal contact with this child prior to 2008. In 2008, there was a contested custody case in South Carolina regarding this child. The child's father was granted custody and the mother was granted access one weekend per month.

[13] The mother deposed that she is isolated and has no family supports in North Carolina. Her relationship with the maternal grandmother, who resides in South Carolina, has improved. The maternal grandmother came to Ontario to support the mother during this hearing.

[14] The father also had a troubled adolescence. When he was 17 years old he was convicted of nine counts of breaking and entering. He also abused substances.

[15] The father has a close relationship with his family. His parents are very involved with the children and his mother often babysits them.

[16] The father is employed as a contractor on a military base. He has been regularly employed throughout the parties' marriage.

[17] The mother has also been steadily employed during the marriage, working at restaurants on weekends.

[18] The parties jointly own their home in North Carolina.

[19] The father has not been convicted of any criminal offences since 1997.

[20] The mother was convicted in 2012 of driving while intoxicated, arising out of a car accident in 2010.

[21] Until recently, the parties had no involvement with Child Protective Services in North Carolina (CPS). The details of their recent involvement with CPS will be set out below.

[22] Prior to recent events, the parties had been involved with the police on two occasions due to domestic conflict. The first occasion was when the mother called the police in either 2004 or 2005. The police attended, spoke to the parties and took no further steps. The second occasion was in February of 2013, when the mother called the police alleging that the father had assaulted her. The police came to the home. They did not lay any charges and did not contact CPS.

[23] Both parties were very involved in raising the children. The mother cared for the children during the weekdays when the father worked. The father cared for the children during most weekends when the mother worked.

[24] The parties agreed that the children love both of them.

Part Three – Procedural History

[25] The mother alleges that the father violently assaulted her in front of the children on January 9, 2015. This was the last, she said, of many assaults.

[26] The mother took the children and left the family home on January 13, 2015. She sought the assistance of the Interact Legal Clinic, in North Carolina. The clinic assisted her in preparing an application for a Protective Restraining Order (PRO). The local police arranged for the mother and the children to stay in a hotel until she could obtain this order.

[27] The mother obtained an ex parte order for a PRO on January 14, 2015 from the Wake County Court in North Carolina. This order also granted the mother temporary custody of the children and no access to the father pending the return of the matter to court. The mother was also granted possession of the home and the father was required to leave. The father was served with this order and the mother's motion materials on January 16, 2015. The motion was returnable on January 22, 2015.

[28] The mother and the children met with a social worker from CPS on January 16, 2015. The mother also attended at a police station the same day for the purpose of laying assault charges against the father.

[29] The father arranged with the police on January 16, 2015 to pick up his belongings from the family home. While he was there, he was arrested for the alleged assault on January 9, 2015. He was in jail until January 18, 2015. The criminal case remains outstanding.

[30] The father retained counsel in North Carolina on January 21, 2015 and the parties attended in court on January 22, 2015 for the return of the PRO matter. The case was adjourned until January 29, 2015 and the temporary orders made on January 14, 2015 were continued.

[31] The father met with the CPS social worker on January 22, 2015. She evaluated him as not being a threat to the children and recorded that he could provide a safe environment for the children and meet their needs. Her report indicates that the father has never mistreated the children and that the children are not fearful of him. She recorded that drug or alcohol use did not affect the father's ability to care for the children. With the PRO in place, she recorded that the situation was conditionally safe for the children.

[32] The mother took the children and left North Carolina on January 27, 2015, arriving in Canada on January 28, 2015.

[33] The father started a court application for custody in the Johnston County Court in North Carolina on January 28, 2015. It was explained to me that in North Carolina different courts deal with PRO's and custody applications.

[34] The mother did not attend the court date in North Carolina on January 29, 2015. Her application for a PRO was dismissed and the temporary orders made on January 14, 2015 were terminated.

[35] On January 30, 2015, the mother obtained temporary without notice orders from this court. The court endorsed that the orders were specifically without prejudice to the issue of whether this court has jurisdiction. The court made temporary orders of custody to the mother, no access to the father, a restraining order and ordered that the father not remove the children from Ontario. The case was adjourned until February 13, 2015, for service of the court documents on the father.

[36] On February 5, 2015, the father obtained an ex parte order in North Carolina. This order granted him temporary custody of the children, ordered the mother to return the children to North Carolina and required the mother to attend in court on February 16, 2015.

[37] The father was served with the Ontario court order of January 30, 2015 and the related court documents on February 6, 2015.

[38] The Ontario case returned for a case conference on February 13, 2015. The parties were both represented by Ontario counsel. Counsel reached an agreement as to how the jurisdictional issues would be determined. A timetable was agreed upon for the filing of additional affidavits. It was agreed that the parties would have up to 90 minutes to cross-examine the other party. The court would determine the issues based on the affidavits filed, the oral evidence and submissions. Hearing dates were set for March 24 and 25, 2015.

[39] The parties also agreed on February 13, 2015 that the father could have Sunday phone calls with the children.

[40] The mother was served with the father's court papers from the North Carolina case at the Ontario court on February 13, 2015.

[41] The mother did not attend at court in North Carolina on February 16, 2015 and the temporary order made on February 5, 2015 was continued indefinitely.

[42] A joint case conference was held with the North Carolina Superior Court on March 16, 2015 by teleconference. Counsel for the parties in both Ontario and North Carolina participated as did the Honourable Madam Justice Rawls from North Carolina and me.

[43] The conference was very helpful. The discussions included the following:

a) Counsel should obtain North Carolina law to determine whether the preconditions set out in Article 3 of the Hague Convention were met at the time of the children's removal from North Carolina.

b) The legal considerations for the Ontario court to apply at the upcoming hearing were reviewed.

c) Father's counsel in both Ontario and North Carolina agreed that they would obtain the father's instructions as to whether he would consent to a mirror order in North Carolina granting the mother temporary custody of the children, in the event that the Ontario court ordered the children to be returned to North Carolina.

d) The North Carolina court advised that it had received medical information that might be relevant for the Ontario case. It sought assurances from this court that this information would not be used for any purpose other than the court proceedings. Counsel in Ontario agreed that the Ontario court should make an order to accommodate this request.

e) The North Carolina court advised that it is able to accommodate a quick return date for a temporary custody hearing, if the Ontario court orders that the children be returned to North Carolina.

f) The Ontario court would provide a written decision after its hearing and send it to The Honourable Madam Justice Rawls and counsel in both Ontario and North Carolina.

g) If the Ontario court ordered the mother to return the children to North Carolina, some lead time for the return would be provided for North Carolina counsel to organize a hearing in North Carolina.

[44] Ontario counsel consented at this case conference to the following orders:

a) The father could file his responding material already served on the mother.

b) The father would also promptly serve and file an affidavit from North Carolina counsel about the process in North Carolina.

c) The mother could serve any reply affidavits by March 20, 2015 and file them by March 23, 2015.

d) The medical records held by the North Carolina court could be attached to an affidavit and served and filed with this court as soon as possible.

e) The medical records would not be released to third parties or used for any purpose other than the court proceedings in Ontario and North Carolina. The affidavits were to be sealed by the Ontario court and could only be unsealed with a court order.

[45] This hearing proceeded on March 24 and 25, 2015. The father could not enter Canada due to his criminal record. Arrangements were made for him to participate in the trial through video-conferencing. This worked well as the father was able to fully participate in the hearing. Closing submissions were completed on April 2, 2015.

[46] The mother was granted considerable procedural leeway in this case due to the seriousness of the issues. She was permitted to call a psychotherapist who had seen the children, when the psychotherapist's letter (that had been attached as an exhibit to one of the mother's affidavits) was ruled inadmissible. The mother was also permitted to file additional documents after she had completed her closing argument.

Part Four – The Evidence

4.1 The Mother's Evidence

[47] Not surprisingly, the parties related completely different narratives about their family history.

[48] The mother deposed that she has always been the children's primary caregiver. She did not think that the father was a very good father.

[49] The mother claimed that she suffered frequent and severe physical, emotional, verbal, sexual and financial abuse from the father during the marriage. She deposed that this included him punching her and pulling out her hair. Many of these assaults, she said, took place in front of the children.

[50] The mother related specific instances of abuse (all denied by the father), including:

a) In May of 2001, the father pushed her to the floor, spit in her face and punched a hole in the wall.

b) In either 2004 or 2005, the father forcibly confined her to the home and violently pulled out her hair. The mother said that she called the police, but did not lay charges. The father admitted preventing the mother from leaving the home because she was drunk and was insisting on driving. He said that she grabbed a knife and swung it wildly at him. He said that he pulled her hair to get her to drop the knife.

c) In 2009, the father pulled a chunk of her hair out and smashed her face into the floor in front of the children.

d) In February of 2013, the father punched her in the face several times, pulled out a chunk of her hair and chipped her tooth. The mother filed a photograph showing that she had suffered a black eye. She also provided a photograph of hair that she said had been pulled out by the father.

e) In May of 2014, the father told her in front of the children that "he would chop her up into pieces and store her in the freezer".

f) She once tried to stop the father from driving while drunk and he responded by pushing her to the ground and using his knees to crush her face.

g) The father would frequently tell her that he would kill her if she left him.

h) On January 9, 2015, the father kicked and punched her several times during an argument and tried to stuff her into the clothes dryer in front of the children. The mother produced photographs of bruising on her legs and back.

[51] The mother claimed that the father regularly abuses drugs, including cocaine, ecstasy and prescription medication. She said that he abuses alcohol and frequently drives while drunk. She said that the father would squander their finances on alcohol and drugs. The father denied these allegations.

[52] The mother alleged that the father would steal money from her and isolated her from having friends. She said that he would call her "psycho" and tell people that she had mental health problems.

[53] The mother claimed that the father was involved in dealing drugs and other criminal activity. She said that he had been investigated by the police, but not charged.

[54] The mother said that she was fired from several jobs due to missing work so she could cover up her injuries from assaults by the father.

[55] The mother deposed that she was afraid to call the police, get medical treatment or seek help from CPS due to her lack of immigration status. She felt that the father's family had powerful influence in the community and she could lose the children if she took any of these steps.

[56] The mother claimed that the reason she left North Carolina was because she feared for the lives of her and the children. She deposed that the father and his family were breaching the January 14, 2015 PRO. She claimed that the father was arrested while driving in her neighbourhood, that the paternal grandmother had improperly attended at the children's school, possibly for the purpose of taking them away from her and was telephoning her to see the children, all of which was in breach of the PRO. She said that the father was tracking her. She felt that the father would not comply with the PRO and would follow through with prior threats to kill her and possibly the children. She said that he had access to his father's guns.

[57] The mother emphasized that she also felt very vulnerable because of her lack of immigration status in the United States. She said that the father had broken many promises to sponsor her in order to keep her under his control.

[58] The mother said that the father's family are very aware of his abusive conduct and enable it. She deposed that they keep minimizing his behaviour and telling her not to report it.

[59] The mother attached a letter from an Intake Worker from the Children's Aid Society of Toronto to one of her affidavits. The letter was not sworn and was of little help. The letter states that the writer has learned that the mother has experienced significant physical and emotional abuse by the father, including stalking, harassment and threats of death, during her marriage, and that the children have directly witnessed many of these incidents. The letter lacked specifics about the sources of this information, or under what circumstances the information was provided.

[60] The mother also attached to one of her affidavits, a case note from a shelter worker in Toronto, containing statements made to the worker by Skylar. Again, this was unsworn evidence and the circumstances of Skyler's statement to the worker were not set out, limiting its weight. The note indicates that Skyler told the worker that:

a) She misses her Daddy.

b) They can't be with her dad because "daddy used to beat mommy up. I saw it. Daddy drinks a lot too".

[61] The note indicates that the writer asked Skylar if she talks to her mommy about this and she told the writer "my mommy explains a lot to me".

4.2 The Father's Evidence

[62] The father described himself as a loving and caring father who has equally cared for the children with the mother.

[63] The father denied that he ever abused the mother, physically or emotionally.

[64] The father admits that he and the mother frequently argued in front of the children. He conceded that these arguments could be emotionally harmful for the children.

[65] The father claimed that the mother has mental health issues and abuses alcohol. He said that she can become quickly volatile and violent and will attack him with knives or kitchen utensils, such as a ladle. He said that he is only physical with the mother to the extent necessary to disarm her and ward off her attacks.

[66] The father said that the mother's eye was blackened in February of 2013 during a domestic dispute where the mother came at him swinging a knife. He said that she cut his neck and arm. She then grabbed a paper towel rack to hit him. He said that while trying to take away the towel rack from her, he accidentally poked her in the eye with his fingers.

[67] The father testified that the bruising on the mother's leg happened when the mother attacked him on January 9, 2015. He said that she was out of control and swinging a ladle wildly at him. He said that he pushed her backwards with his foot; she lost her balance and fell against the window sill, bruising her back.

[68] The father denied ever threatening the mother. He said that the mother would threaten his life. He said that she has threatened to stab him to death in his sleep and dance on his grave. He said that these threats have been made in front of the children. The mother denied making such threats.

[69] The father produced a photograph of cuts and scratches on his arm that he claimed occurred during an attack by the mother. He said that on the family computer he had other photographs of injuries he had sustained when the mother had attacked him, but the mother had taken the hard drive from the computer before she left North Carolina. The mother testified at the hearing that the father's scratches resulted from self-defence when he attacked her, and deposed in her affidavit that the father's injuries were self-inflicted. She admitted taking the hard drive from the computer prior to leaving the United States, but denied that it contained photographs of injuries suffered by the father.

[70] The father also said that the mother was emotionally abusive to him, particularly when consuming alcohol. He said that she frequently used foul and derogatory language in front of the children. The mother denies this.

[71] The father testified that the mother's volatility was not restricted towards him. He said that the mother would fight with friends, co-workers, neighbours and women in bars. He said that in 2010 she was charged with assaulting another woman. She was not convicted, as the purported victim did not attend at trial. The mother claimed that this was a bar fight she was breaking up. He said that the police were called once in 2012 when the mother became involved in a physical incident with a neighbor over a dog, where the mother bit the neighbour's breast, leaving a bruise. The mother said that the neighbor slapped her across the face and denied biting her.

[72] The father deposed that the mother has been fired from multiple jobs due to her confrontations with employers and patrons. The mother denies this.

[73] The father alleged that Skylar is often a target of the mother's verbal abuse – the mother will call her stupid and retarded. The mother denies this.

[74] The father conceded that he abused drugs and alcohol when he was much younger, but said he has changed. He denied having a drug problem. He is regularly tested for drugs as a condition of his employment and has passed all drug tests. He provided a letter from his employer confirming this, together with a recent clean urine test. The mother claimed that the father knows how to beat drug tests and submitted that the court should give little credence to these results.

[75] The father said that he will have a few beers on most evenings. He conceded that on occasion he will go out to a party and drink too much. He denied being drunk in front of the children.

[76] The father claimed that the mother would often go out drinking, consume drugs and return home impaired in the early morning hours. The mother denied this.

[77] The father claimed that the mother's mental health issues have continued – that she becomes depressed and will self-harm. He said that the mother once attempted to jump out of a second story window (the mother said this was to escape an assault by the father); attempted suicide by drinking a bottle of Windex (denied by the mother) and attempted to cut her wrists in December of 2014 (the mother provided medical records showing that this was a minor workplace injury).

[78] The father described himself as hard-working and financially responsible. He has been steadily employed.

[79] The father strongly denied being involved in any criminal activity or being investigated for criminal behaviour. No credible evidence was led to support this allegation.

[80] The father denied socially isolating the mother. He said that the mother had friends and has a forceful and outgoing personality. He deposed, "She marches to the beat of her own drum. She is very much her own person. She is free thinking and opinionated and she doesn't let anyone tell her what to do do….she would be impossible to control".

[81] The father said that the mother lost her first child due to her lifestyle of abusing drugs and partying and she consented to an order for the maternal grandmother to raise this child. He said that the mother wanted to marry him to improve her chances of applying for custody of this child as the maternal grandmother was threatening to remove the child from the United States. He denied ever promising to sponsor the mother and stated that the mother had considered following up with legitimizing her immigration status at times, but never followed through.

[82] The father denies the mother's allegations that his parents are people of influence in North Carolina. His father worked in a junk yard for 30 years and his mother sells pharmaceuticals.

[83] The father said that on January 6, 2015 the mother did not come home. He contacted her by phone at 5 a.m. and she was intoxicated. She claimed that she had been held at gunpoint by two men who were regular patrons at the bar where she worked. The father said that he felt this was unlikely – the mother frequently lies – he felt that she had been drinking and using drugs and was making excuses for not coming home. The father had to call his mother to assist with the children so he could go to work.

[84] In a reply affidavit, the mother said that she sometimes worked cleaning the home of these two persons. She said that these persons were upset because their tools had been stolen. They suspected her of stealing the tools. She told them that the father had stolen the tools and she was returning them. The mother claimed that she was afraid to return home because of what the father's reaction would be when he learned that she had told these men about his theft. She denied being held at gunpoint – she just told the father that these men had guns. She said that the fight with the father on January 9, 2015 arose because he was angry about her reporting his theft to these men. She denied being impaired.

[85] The father believes that the mother came to Canada because she learned at the January 22, 2015 court appearance that they would likely each have the children 50% of the time and she intended to prevent this from happening – she had already lost her first child and was not prepared to share these children.

[86] The father said that the mother took one of his credit cards at separation and ran up $3,000 on the card before leaving the United States, including buying new tires for her van. He felt that she carefully planned the abduction of the children. The mother admitted spending this money, but claimed that she was authorized to use the credit card. The father testified that to avoid having to pay for these charges he was required to report the unauthorized usage of the credit card to the police. He did this on February 5, 2015. No charges have been laid against the mother.

[87] The father said that he respected and complied with all court orders. He said that once served with the PRO, he did not try to locate the mother until the PRO was terminated. After the PRO was terminated, the father tried to determine where the mother had taken the children. He said that he contacted the maternal grandmother, the mother's friends and her sister. He tried to locate the mother through her cellphone. He contacted Toronto authorities to see if the mother had come to Canada (as her aunts lived in Toronto). This is how he learned where she was. He said that his mother had contacted the Sheriff's office in North Carolina to arrange to see the children after the PRO was granted and she had been told to contact the mother directly.

[88] The father deposed that he was prepared to comply with undertakings if the children were ordered returned to North Carolina, including:

a) He would live separate and apart from the mother and the children;

b) He would consent to an order granting the mother temporary custody of the children until such time as the parenting issues could be determined on their merits;

c) He would consent to a mutual restraining order;

d) Access exchanges would be facilitated through a third party;

e) He would provide child support;

f) He would provide spousal support as required by the North Carolina court;

g) He would maintain the mother on health benefits;

h) He would assist the mother to obtain legal status in the United States.

Part Five – The Psychotherapist

5.1 Voir Dire

[89] In her reply affidavit, sworn on March 19, 2015, the mother attached a letter from Natalie Riback, a psychotherapist that she had taken the children to see in Toronto.

[90] The letter from Ms. Riback contained a clinical diagnosis of the children and several child statements. The father objected to the admission of the letter, submitting that it was not sworn evidence, that it was improper opinion evidence, that it was not appropriate reply evidence and that the children's statements in it were hearsay and unreliable.

[91] The mother argued that the father had failed to make these arguments in a timely manner. Otherwise, she would have brought Ms. Riback to court to testify.

[92] It was evident from the face of Ms. Riback's letter that there were admissibility issues. It was unsworn evidence, no curriculum vitae was attached, it was highly questionable whether Ms. Ribak had the expertise to proffer the opinions contained in the letter and there were questions to be asked about the circumstances surrounding the making of the children's statements and the reliability of those statements. However, the statements attributed to the children were sufficiently concerning that the court felt it was important to hear from Ms. Riback directly and have these issues further explored. The letter was ruled inadmissible, but the mother was given permission to call Ms. Riback the next day as a witness.

[93] The mother called Ms. Riback as a witness on March 25, 2015. The mother advised the court that Ms. Riback would not be tendered as an expert witness – she was only being called to testify about the children's statements.

[94] The father objected to the admission of the children's statements and a voir dire was conducted. It was agreed that if the statements of the children were admitted, the evidence on the voir dire would be applied to the trial proper.

[95] The voir dire was conducted. The court advised the parties at its completion that it would reserve on the admissibility issue and provide its reasons for decision within the final decision. The examination of Ms. Riback was permitted to continue on the substance of her evidence (including the children's statements), with the understanding that the court would disabuse itself of her evidence if it subsequently ruled that the children's statements were inadmissible.

5.2 Legal Considerations on the Voir Dire

[96] The mother asked the court to admit the children's statements made to Ms. Riback for the truth of their contents as an exception to the rule against hearsay evidence, using the principled approach of establishing necessity and reliability as set out in The Queen v. Khan, [1990] 2 S.C.R. 531.

[97] The parties agreed that the necessity portion of the Khan test was met, given the young ages of the children and the emotional harm that could result to them if they had to testify about these matters. This left the issue of reliability.

[98] The legal test for the court to apply at a voir dire involving child statements is whether the circumstances surrounding the statements achieve threshold reliability – not whether the statements are ultimately reliable. The question for threshold reliability is whether a particular statement is sufficiently reliable to be admitted. See: R. v. Khelawon 2006 SCC 57, [2006] S.C.J. No. 57

[99] The court must employ a functional approach by first identifying the particular dangers posed by the proffered hearsay and then considering whether those dangers may be adequately overcome so that the hearsay may be considered sufficiently reliable to be admitted for consideration by the trier of fact. At paragraphs 61-63 of R. v. Khelawon, supra, Charron J. observes that the reliability requirement will generally be met in one of two ways:

(1) that there is no real concern about whether the statement is true or not because of the circumstance in which it came about; or

(2) that no real concern arises from the fact that the statement is presented in a hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination.

[100] On the threshold test of reliability, it is not necessary that the judge be satisfied on each and every potential indicator of reliability. Weaknesses in some areas may be compensated for by strengths in others. See: Children's Aid Society of Ottawa-Carleton v. L.L. (2001), 22 R.F.L. (5th) 24 (S.C.J.).

[101] In Khan, supra, Madam Justice McLachlin indicates that many considerations may be relevant to reliability. She includes such considerations as: timing, demeanor, the personality of the child, the intelligence and understanding of the child, the absence of any reason to expect fabrication, corroboration, and the child's having knowledge of matters that he or she would not otherwise have.

5.3 Analysis and Ruling on Voir Dire

[102] The court considered the following factors in assessing whether the children's statements to Ms. Riback achieved threshold reliability:

a) Ms. Riback has some experience interviewing children who have been exposed to domestic violence and trauma in immigration matters.

b) The interview was relatively recent.

c) Ms. Riback testified that Skylar was open in discussing matters with her, although the child didn't express much emotion while talking with her.

d) Skylar made statements to Ms. Riback consistent with the mother's allegations against the father.

e) The shelter worker's case note stated that Skylar told her that: "Daddy used to beat mommy up" and "daddy drinks a lot too". On the surface, this appears to corroborate statements made by Skylar to Ms. Riback.

f) Ms. Riback appeared to sincerely wish to help the children.

[103] Notwithstanding these positive considerations, the court finds that Ms. Riback's interview of the children was so fundamentally flawed that it did not even reach the standard of threshold reliability and the children's statements made to her are inadmissible.

[104] Ms. Riback testified that she had Bachelor of Arts degrees in English and Anthropology. She said that she took the 6 year psychotherapy program, at the Centre for Training in Psychotherapy, part-time over a period of 13 years. She has been practising on her own since 2008, although she practised under supervision from 2006 to 2008.

[105] Ms. Riback stated that she primarily works in the immigration field. Much of her work consists of preparing reports for refugee hearings on trauma suffered by both parents and children. She said that she does work for about 60 immigration lawyers, including the mother's lawyer, and they have been very pleased with the work that she has done for refugees.

[106] The reliability of the children's evidence given to Ms. Riback was flawed for the following reasons:

1. She did not bring any notes of her discussions with the children with her to court. It should be a basic step for any professional to keep notes of child interviews and bring them to court when testifying.

2. Without notes, Ms. Riback had to solely rely upon her memory. When questioned about specifics of her discussions with the children by the father's counsel, she understandably had difficulty remembering them.

3. By failing to bring her notes, the father's counsel was restricted in cross-examination and could not fully explore specific details about Ms. Riback's interview with the children.

4. Ms. Riback testified that when she kept notes, she only wrote down answers, not questions. Even if she had produced her notes, this would have given the court little opportunity to assess the context of the children's statements, whether the answers were prompted or suggested by the questions or even an accurate depiction of what the children said or meant. This court commented on the difficulties presented by this limited manner of note-taking in Children's Aid Society of Toronto v. K.F., [2007] O.J. No. 5455 (OCJ).

5. Ms. Riback failed to interview the children privately from the mother. She testified that she interviewed the children in a room separate from the mother. However, it was alarming to hear that early in the interview, the mother shouted out from the other room, when Ms. Riback was speaking to Mason, "he is autistic"! This communicated to the children that the mother was right beside them and listening to the interview. At this point, at the very least, it should have been obvious to Ms. Riback that she should have taken further steps to ensure that she interviewed the children privately from the mother. Instead, she just continued with the interview, with the mother listening in and the children aware of this. It appeared to the court that Ms. Riback did not appreciate the difficulties with this.

6. Ms. Riback failed to conduct separate interviews of each of the children.

7. Ms. Riback only obtained a history of the case from the mother and her counsel. She made no attempts to contact the father to obtain his version of events. Ms. Riback conceded that this might have been helpful, but that she didn't contact the father because he was in North Carolina. Father's counsel quite properly pointed out that she could have telephoned the father or his counsel.

8. Ms. Riback was unilaterally retained by the mother's counsel. She said that counsel explained the Hague Convention to her. It is likely that Ms. Riback became aware of the legal test of harm that the mother had to prove to remain with the children in Canada. The first line in her letter to the mother's counsel that reads "I interviewed Skylar and Mason Pulley for an assessment to accompany your submissions" reinforces the concerns about her neutrality.

9. Ms. Riback testified that she went into the interview with the assumption that the children were the victims of domestic violence and had been traumatized. She accepted the mother's version of events without question.

10. Ms. Riback admitted that she has never been retained to act in a case that was in a family court and this was the first time she had testified in a family court.

11. Ms. Riback did no screening to determine if anyone had spoken to the children about her interview, or if the children had been coached or influenced about what to say to her by the mother. She said, "I suppose those would have been good questions".

12. The failure to screen about what had been previously said to the children was very problematic as it was apparent in the mother's evidence that she was speaking to the children about the court case and the father's conduct. This was confirmed by Skyler's statement to the shelter worker (when asked if the mother talked to her about her father's behaviour) that "mommy tells me a lot". Based on my assessment of the mother (this will be set out in more detail below), there is a strong possibility that she was reinforcing her narrative of the family history with the children, if not prompting them about what to say to Ms. Riback.

13. Ms. Riback conducted only one interview of the children, of approximately 45 minutes. She did not conduct a follow-up interview to ensure consistency of the children's statements. She said that this was due to time constraints.

14. Ms. Riback testified that almost all of the children's statements were in response to her questions. When an interview is conducted in this form, with a young child, there is a real risk of prompting or suggestibility.

15. It became apparent in cross-examination that Ms. Riback asked the children several leading and suggestive questions, such as:

a) Do you remember being in school and being distracted due to your memories?

b) What violence did you witness?

c) Did you see alcohol?

16. Ms. R appeared to have focused exclusively on the father's conduct in the interview. She admitted that did not ask the children questions about their mother's conduct.

17. It is concerning that in her letter provided to the mother's counsel and attached to the mother's affidavit, Ms. Riback provided a clinical diagnosis of the children that she appeared unqualified to give. It was troubling to the court that Ms. Riback did not appear to recognize the limitations and boundaries of her ability to provide opinions. Mother's counsel wisely did not try to have Ms. Riback qualified as an expert witness.

[107] In the circumstances of this interview, Skyler had to have felt under significant pressure to make negative statements about the father. Her mother had been talking to her about the case and her father's conduct and was likely reinforcing her narrative about events. Her mother was listening in the room next door and Skyler quickly became aware of this. Skyler would have been under pressure to please her mother and the interviewer, who was questioning her on the basis that she had seen her father's violent conduct and had suffered trauma.

[108] It is likely that Ms. Riback's inexperience with family law matters and the dynamics which can impact on the reliability of child statements contributed in this case to her flawed interview. She has no experience in interviewing children in family law matters.

[109] It would be dangerous, not only for this case, but for other cases involving child statements, to lower the threshold reliability standard to the degree that child statements made in such flawed circumstances would be admissible. It would make the threshold reliability test virtually meaningless. There would be a real risk that cases could be incorrectly decided on highly unreliable evidence.

[110] This court has to make a critical decision for these children. It is important that it base this decision on reliable evidence. Ms. Riback's evidence about the children's statements is found to be inadmissible.

[111] The court heard the children's statements given to Ms. Riback. Even if the court had found that these statements achieved threshold reliability, it would have given them nominal weight (the issue of ultimate reliability), given the circumstances of the interview set out above.

[112] The mother did not ask to admit the children's statements for a purpose other than the truth of their contents.

[113] There was no other material evidence provided by Ms. Riback.

Part Six – Credibility of the Parties

[114] The exercise of making factual findings in this case was made difficult by the fact that the court had significant difficulties with the credibility of both parties.

6.1 The Father

[115] The court finds that the father understated his role in the domestic violence with the mother. It did not find credible his protestations that he always acted in a defensive manner to the mother's aggression. It did not find his explanation that he poked the mother in the eye in February of 2013 to be credible. The photographs provided by the mother showed significant bruising. It also did not find his explanation about how the mother suffered bruises on her leg and back on January 9, 2015 to be credible. The bruising in the photographs provided by the mother indicated that the father used more force than he claimed.

[116] The court finds that the father understated his use of alcohol and how it contributed to the conflict in the family home.

[117] The court finds that the father overstated the mother's mental health challenges. He submitted that the mother attempted to commit suicide in December of 2014, when the hospital records established that her cuts were as a result of a minor workplace injury.

[118] The court finds that the father overstated the mother's dependence on medications. He provided photographs of these medications, but the mother explained to the court's satisfaction that many of these had expired.

[119] The father initially testified that the children were not exposed to domestic violence and then backtracked. He showed little sensitivity or insight into the impact domestic violence might have had on the children.

[120] The father demonstrated little sensitivity when the mother was injured during one of their altercations. He took no steps to assist her or take her to the hospital. He didn't even ask if she was in pain.

[121] The father also showed little interest in the mother's immigration status, only offering now to assist her with it. His offer at this late stage appeared to be disingenuous.

[122] The father understated his criminal record in his Form 35.1 affidavit, where he is required to list all criminal convictions. He listed one conviction for breaking and entering in 1997. He was actually convicted of nine counts of breaking and entering at that time.

6.2 The Mother

[123] The evidence of the mother was even less credible than the father's. Her evidence was sometimes contradicted by independent evidence. At times, her evidence was illogical. She was quick to blame others and not take any responsibility for her actions. The problems with her evidence and credibility included the following:

a) The mother claimed that when she attended at the hospital in 2001, she lied and said that she had tried to commit suicide to protect the father, who she said had assaulted her. She said that he was on probation and if she had told the truth, he would have gone to jail. However, the mother continued with treatment at the hospital for seven months, seeing several mental health professionals. She tried to convince the court that she continued the charade of faking mental health symptoms and fooled the medical professionals for this extended period of time to protect the father. This was highly unlikely, particularly when one reviews the hospital records that reveal the mother's traumatic and dysfunctional family history and detailed history of substance abuse and mental health challenges – at that time very related to her grief over not being with her first child. The fact that she had these issues in 2001 was nowhere near as relevant in this case as was the ease with which she lied about them at this hearing.

b) The mother minimized at this hearing the extent of her substance and alcohol abuse up until 2001. The independent hospital records from 2001 indicated that this abuse was substantial.

c) The mother minimized her more recent use of alcohol. When asked whether her driving while intoxicated conviction in 2012 was indicative of an alcohol problem, the mother said, "I didn't have a problem, I was over the age of 21". When asked why she drove a car while intoxicated, the mother said, "I wasn't intoxicated, I was just over the legal limit". When asked why she didn't take public transit instead of driving, the mother answered, "If you understood public transit down there you would realize I had no choice". The accident occurred at 2:30 a.m. when the mother drove across the median and collided with a parked car, causing $20,000 damage.

d) The mother failed to mention this conviction in her Form 35.1 affidavit in the Ontario court, where she is supposed to list all criminal convictions. She blamed her duty counsel for this. It appears that the mother has not taken any treatment for alcohol abuse.

e) The court noticed that the mother was quick to externalize blame when the evidence did not support her. A pattern developed in her evidence. For example:

1. She said that the North Carolina police report from February of 2013 was inaccurate.

2. She claimed that the police report about her driving while intoxicated conviction was inaccurate.

3. She claimed that the police report about her confrontation with her neighbor in 2012 was inaccurate.

4. She claimed that the CPS reports were not reliable and incomplete.

5. She claimed that the North Carolina hospital did not properly assess her in 2001.

6. She blamed duty counsel for her inaccurate Form 35.1.

7. She entirely blamed the father for their domestic conflict, accepting no responsibility for her role in it.

8. She blamed her neighbor for their physical confrontation in 2012.

9. She blamed the bar patron for their physical confrontation in 2010.

f) The mother was not candid with the court about why she gave up her first child to her mother in 2000, trying to represent that this was only due to her lack of financial means and immigration status. It was apparent from the hospital records filed that the mother was very troubled and unstable at that time and had a difficult relationship with the maternal grandmother. It is not surprising that her contact with the child at that time was restricted by the maternal grandmother. Again, the reasons for her lack of a relationship with her child at that time are not as relevant today as are her current misrepresentations about these events.

g) The court records showed that the mother represented to the South Carolina court in 2008 (in the custody case regarding her first child) that: "her relationship with the father is successful, she owns her car and she and her husband own a home; she is physically well, spiritually well, psychologically well and financially well". This is far different evidence than the evidence she gave in this case, where she claimed that she was isolated, abused and oppressed by the father. This informs the court that the mother is prepared to provide courts with whatever evidence she feels is required to advance her position at any given time.

h) The mother misrepresented to this court, when applying for her without notice order, that the father was breaching the PRO. She represented that he was out of control, placing her and the children at serious risk of immediate harm – that if she did not leave North Carolina, the father would kill her and possibly the children. She represented that the father was arrested breaching the PRO and was continuing to breach the PRO. The evidence did not support these allegations. The father was complying with the PRO. He did not contact the mother. His arrest had nothing to do with a breach of the PRO. He was cooperating with CPS and the legal process.

i) The mother's allegations against the father seemed to escalate with each affidavit that she filed.

j) The mother omitted the troubling incident on January 6, 2015 in her first two affidavits filed. It appeared this was the catalyst for the argument that resulted in the separation of the parties. Neither party's version about this incident and their fight on January 9, 2015 places either of them in an attractive light.

k) The mother claimed to be afraid to contact the police, CPS or go to the hospital due to her immigration status. However, the evidence showed frequent contacts with hospitals and the police.

l) The evidence shows that the mother has a pattern of conflictual relationships. Aside from the father and his family, she has had conflict with her own family, neighbours and bar patrons.

m) The mother overstated the influence of the paternal family in North Carolina.

Part Seven – Material Findings of Fact

[124] In addition to the facts set out in Parts Two and Three above, the court makes the following material findings of fact, on a balance of probabilities:

a) The mother has been the primary caregiver for the children. She cares for the children while the father works during the week.

b) The father also has been instrumental in caring for the children. He has been responsible for caring for them on most weekends while the mother works.

c) The children have a good relationship with the paternal grandparents who provide babysitting help and financial assistance.

d) Both parents are capable parents when parenting the children (except for exposing them to an unacceptable level of domestic conflict). This was the finding of the CPS social worker, who interviewed both parents and the children.

e) Both parents love the children and the children love the parents.

f) The father has never been directly physically or emotionally abusive to the children.

g) There was significant domestic conflict in the family home prior to the separation of the parties. This conflict at times became physical and was likely fuelled by excessive alcohol consumption by both parties.

h) Both parents have anger management issues.

i) Both parents, and in particular the father, showed little insight into the impact the domestic conflict could have on the children.

j) The father understated his role in the domestic violence. At times, he either carelessly or intentionally injured the mother during their physical confrontations. He also overstated the mother's role in the domestic violence.

k) The mother overstated the frequency and the extent of the father's violence to her and understated her own role in the domestic conflict.

l) At times, the mother was the aggressor in the domestic violence, causing minor injuries to the father.

m) The harm caused by the father during the domestic violence was much more significant and troubling, given the huge size difference between the parties.

n) The parties would make threats against one another when having their arguments.

o) The domestic conflict and violence frequently happened in the presence of the children.

p) While the mother has had mental health issues over the years, including occasional depression in more recent years, her functioning is much better than represented by the father. She presented to the court, in very stressful circumstances, in a calm and composed manner.

q) Both parties excessively consume alcohol at times.

r) The court does not find that the father has drug issues, as alleged by the mother. He provided sufficient independent evidence to refute this allegation.

s) The mother did not prove on a balance of probabilities that the father has been involved in criminal activity during their marriage.

t) The father was in compliance with the PRO from North Carolina before the mother left the jurisdiction. He only attempted to locate the mother once the PRO was dismissed. This was not stalking behaviour as alleged by the mother. This was the perfectly understandable behaviour of a parent trying to locate his children.

u) The father did not display out-of-control behaviour after the separation as alleged by the mother. He complied with the PRO. He sought the assistance of the police to pick up his belongings after the PRO was made. He did not use self-help. He cooperated with the CPS investigation in North Carolina. He retained counsel and attended at court. The merits of the case were to be addressed in court on January 29, 2015. The father has also actively participated in the legal process in Canada and has complied with its orders.

v) The mother did not prove on a balance of probabilities that the paternal grandmother has acted inappropriately. There is no credible evidence that the paternal grandmother attended at the children's school with the purpose of removing the children from the mother's care or indirectly assisted the father to breach the PRO.

w) The authorities in North Carolina have taken all reasonable steps to protect the mother. The mother received assistance in going to court from a clinic. The police placed her and the children in a hotel under an anonymous name until she could obtain a PRO. The North Carolina court granted her temporary custody, no access to the father, possession of the family home and a PRO, without notice. The police arrested the father for assault when the mother attended the police station to lay a charge.

x) The institutions in North Carolina, including the courts, are well equipped to properly protect the mother and the children. Details of this were extensively set out in the affidavit of Dionne Loy Fortner (counsel for the father in North Carolina), sworn on March 10, 2015.

y) The children had many friends and family in North Carolina. They were well-established in their community. The children had never been to Canada.

z) The mother has little remaining connection to Canada. She has two aunts who live here. She had only seen them once in the past 17 years. She testified that she had not seen any of her Canadian friends since she moved to the United States.

aa) Neither party took active steps to regularize the mother's immigration status in the United States. The father has shown no interest in helping the mother until now.

bb) There are likely a variety of reasons that contributed to the mother removing the children from North Carolina. What appears most likely is that the mother was emotionally escalated, scared and confused after the separation. She had just left a highly dysfunctional and violent relationship and her future was uncertain. She was uncertain about parenting and financial arrangements. She likely felt particularly vulnerable due to her court experience with her first child and how her involvement in his life was restricted. She likely (and with some justification) feared that the father and his family would attempt to use her prior mental health history and her history with her first child to take the children away from her or to marginalize her involvement with them. She also feared that the father and his family would report her to immigration authorities for this purpose.

cc) The idea of coming to Canada (as opposed to going to South Carolina where her mother lives, or Ohio, where her sister lives) was attractive to the mother in these circumstances. She hoped it would allow her to keep the children and minimize her contact with the father. She likely knew that it would be difficult for the father to come to Canada because of his criminal convictions. She likely also calculated that a court might be hesitant in ordering the children back to North Carolina if she herself would be unable to return to the United States because of her immigration status.

Part Eight – The Hague Convention Claim

8.1 General Principles

[125] The father's primary argument is that the children should be returned to North Carolina pursuant to the provisions contained in the Hague Convention.

[126] The Hague Convention contains its own code and rules and is intended to be a mechanism for expeditious enforcement. It is not intended to be a forum to decide the case on its merits or to determine best interests. See: Thomson v. Thomson, (1994), 6 R.F.L. (4th) 290 SCC.

[127] In Paragraph 19 of Loucidis v. Loukas, Justice H. Sachs writes:

In Thomson the Supreme Court of Canada has made it clear that the concern of the Hague Convention is not to assess the blameworthiness of a parent's behaviour in removing a child. Rather, it is an attempt to establish international comity in a situation where parents who are fighting about their children can so easily seek to gain an advantage in that fight by removing their children to another jurisdiction. From the point of view of children, the need for that comity is obvious. Children whose parents have separated deserve to be protected from the disruption that can be caused by their unilateral removal by one parent from their place of habitual residence before the courts in their place of habitual residence have had the opportunity to finally determine which parent is to be their custodial parent.

[128] Hague Convention contracting states accept that the courts of other contracting states will properly take the best interests of the children into account. Thus, where there has been a wrongful removal or retention, and no affirmative defence is established within the meaning of the Hague Convention, the children must be returned to their habitual residence. See: Katsigiannis v. Kottick-Katsigiannis, [2001] O.J. No.1598 (OCA).

[129] There is a presumption that the courts of a child's home jurisdiction will be able to make arrangements that will protect a child from harm if the child is returned there, but it is open to the parent who wrongfully removed or retained a child to establish that such arrangements will not be effective or cannot be made. See: Ireland v. Ireland, 2011 ONCA 623, at par. 48; Ellis v. Wentzell-Ellis, 2010 ONCA 347, at par. 50; Finizio v. Scoppio-Finizio, [1999] O.J. No. 3579 (C.A.), at par. 34.

[130] Article 1 (all reference to "Articles" herein are to Articles of the Convention) sets out that the purposes of the Convention are: to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. The United States and Canada are Contracting States to the Convention.

[131] The Convention's underlying rationale is that disputes over custody of a child should be resolved by the courts in the jurisdiction where the child is habitually resident; child abduction is to be deterred. The Convention presumes that the interests of children who have been wrongfully removed are ordinarily better served by immediately returning them to the place of their habitual residence where the question of their custody should have been determined before their removal. See: V.W. v. D.S., [1996] 2 S.C.R. 108.

[132] Article 3 reads:

Article 3

The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

[133] The Convention draws a distinction between rights of custody and rights of access. Article 5 sets out this distinction as follows:

Article 5

For the purposes of this Convention:

(a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

[134] Article 12 reads as follows:

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

[135] Article 13 provides an exception to Article 12, even in the event that the court finds a wrongful removal or retention, in that a judicial authority of the requested state is not bound to order the return of the child if the person who opposes the return establishes that:

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

[136] Article 17 provides that the sole fact that there is a custody order, or that a parent is entitled to seek a custody order in the place of habitual residence, is not, by itself, grounds for returning a child to the place of habitual residence. It also provides that the court may take into account the reasons for that decision in applying the Hague Convention.

8.2 Article 3

[137] The mother conceded at the hearing that North Carolina was the children's habitual residence. She also agreed that the father did not consent or acquiesce to her removing the children to Canada.

[138] The mother argues that the father did not have custodial rights to the children and was not exercising custodial rights to the children at the time of their removal. Accordingly, she submits that the removal of the children was not wrongful as set out in Articles 3 and 12.

[139] The onus is on the father to establish that the preconditions set out in Article 3 have been met.

[140] The relevant time to determine if the father had established the preconditions set out in Article 3 is the date that the children were removed from North Carolina. These preconditions cannot be established post-removal by the granting of an order granting the father custodial rights (a chasing order) as was done in this case. See: V.W. v. D.S., supra.

[141] "Exercising custody" does not mean the same thing as being a primary caregiver. See: Abib v. Abib, 2010 ONSC 5869.

[142] In an Article 3 analysis, the nature of the custody rights of the party seeking an order for the return of children should be determined in accordance with the law of the habitual residence of the children. See: Finizio v. Scoppio-Finizio, supra.

[143] The parties were unable to provide the court with any law from North Carolina on this issue. Subject to certain exceptions, foreign law is treated like a fact, which must be specifically pleaded by the party relying upon it, and which must be proved to the satisfaction of the court. Canadian courts generally do not take judicial notice of foreign law and they apply the lex fori law unless applicable foreign law is pleaded and proved. If the foreign law is not proven, the jurisprudence sets out that the court is to apply the law of the forum (Ontario). See: Guarantee Co. of North America v. Mercedes-Benz Canada Inc. (2005), 83 O.R. (3d) 316 (S.C.J.), aff'd (2006), 86 O.R. (3d) 479 (Ont. C.A.). Accordingly, the court has applied Ontario law on this issue.

[144] La Forest J. in Thomson v. Thomson, supra, at paragraph 46 states:

Custody, as understood by the Convention, is a broad term that covers the many situations where a person lawfully has the care and control of a child. The breach of rights of custody described in art. 3, it will be remembered, are those attributed to a person, an institution or any other body by the law of the state where the child was habitually resident immediately before the removal or retention. Article 3 goes on to say that custody may arise by operation of law. The most obvious case is the situation of parents exercising the ordinary care and control over their child. It does not require any formal order or other legal document, although custody may also arise by reason of a judicial or administrative decision, or by agreement.

[145] The exercise of custody rights in the context of Article 3(b) "must be construed widely as meaning that the custodial parent must be maintaining the stance and attitude of such a parent." See Re H., Re S. (Minors) (Abduction: Custody Rights), [1991] 2 A.C. 476 at 500 (H.L.).

[146] In Ryan v. Ryan, [2010] N.J. No. 379 (Newfd. & Labrador Supreme Court) the court found that the father had rights of custody when the court was not persuaded that the mother (who had removed the children from the jurisdiction) had an undivided right to determine the children's residence. It noted that Article 5 sets out that "rights of custody" include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.

[147] The mother submitted that her removal of the children from North Carolina was not wrongful as contemplated in Article 3 – since by virtue of the ex parte custody order she obtained in North Carolina, the father had no rights of custody (or even access) and was not exercising rights of custody at the time she removed the children.

[148] This type of argument was specifically considered and rejected by the British Columbia Court of Appeal in Johnson v. Jessel, 2012 BCCA 393, [2012] B.C.J. No. 2036 (BCCA), leave to appeal refused, [2012] S.C.C.A. No. 483. Similar to this case, the mother obtained an ex parte custody order (in British Columbia) and subsequently removed the children (to Germany). The court determined that once a custody proceeding is brought before it, the court has custody rights and retains the right to exercise custody pursuant to Article 3. The court commented about the ability of a court to have and exercise rights of custody as follows in paragraphs 39-41:

39 Though the terminology of the Convention in which 'rights of custody' are attributed to an institution is less familiar in this jurisdiction than the use of the term 'exercise of jurisdiction', the law is well settled that a court may exercise the rights of custody within the meaning of Article 3 of the Convention: Thomson at 588, Fasiang at para. 92. This notion of the Court exercising rights of custody was explained by Madam Justice Martinson in Fasiang at paras. 92-97:

[92] The law is clear that the court is an institution that can exercise rights of custody.

[93] Counsel for Mr. Fasiang says that the law also provides that where a foreign court is properly and actively seized of an issue as to where the child should reside, and where, while those proceedings are pending, the child is removed from its place of habitual residence without the consent of the court, the court hearing the application for return must recognize those rights of custody in the foreign court. There need not be an order relating to custody or residency in place.

[94] Counsel for Ms. Fasiangova does not dispute that statement of the law.

[95] I agree with counsel for Mr. Fasiang. The statement of the law is supported by the following cases: Thomson; Re W, Re B (Child Abduction: Unmarried Father), [1998] 2 FLR 146 (H.C.J. Fam.D.); Richards v. Goldsmith, (3 July 2001) Case No. FD 01 P 00707 (H.C.J. Fam.D.); Brook v. Director General Department of Community Services (2002), 167 FLR 243 (Fam. Ct. Austl.).

[96] There is a sound policy basis for the law. When a parent places issues concerning the child that are in dispute, including the issue of where the child should reside, before a court, the court has the right to decide the disputed issues, including the right to decide where the child should reside.

[97] One parent cannot circumvent the court's right to make that decision by unilaterally deciding to change the residence of the child. To hold otherwise would again defeat the objectives of the Hague Convention.

40 For purposes of the Hague Convention, rights of custody may reside in the court, or with the mother or father or both. Thomson and C. v. C. (Minor: Abduction: Rights of Custody Abroad), [1989] 2 All E.R. 465 (C.A.), appears to recognize that custody under the Convention may be divided so that some rights may lie with the court, as well as with one or both of the parents. (See also In re H, [1999] H.L.J. No. 52, [2000] UKHL 6, [2000] 2 A.C. 291 at 302).

41 Rights of custody are specified by the Convention. For convenience, I repeat that portion of Article 5:

"Rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

[149] The court in Johnson found that the British Columbia court retained rights of custody once the mother placed the custody issue before it and sets out the policy reasons for making such a finding, writing in paragraph 49:

49 Ms. Jessel argues that regardless of whether the June 22, 2010 order was interim or final, the court retained no rights of custody under the Convention. She contends that because there was no non-removal clause in the interim custody order, the court did not retain custodial rights over the children. I disagree. In Thomson, La Forest J. stated that when custody is a live issue, and a court awards custody on an interim basis, the court does retain custody rights under the Convention: Thomson at 588. While a non-removal clause may be placed in an interim order to preserve the court's jurisdiction, such a clause is not required. In the circumstances of this case, the Provincial Court was actually exercising its custody rights at the time of the removal. It follows that the removal of the children was unlawful within the meaning of the Convention. Were this not so it would follow that in any case of spouses asserting competing claims to sole custody of children, either one could simply obtain an ex parte order for interim custody on whatever he or she put before the court, and then take the children to another jurisdiction on the strength of that order. That cannot be either the correct interpretation of the reach of such an interim order or of the Convention.

[150] This was the same result as in Lombardi v. Mehnert, 2008 ONCJ 164, [2008] O.J. No. 1413 (OCJ), where the court held that even though the mother had an order of interim custody (and even though the order did not contain a non-removal clause), because the order was interim only, the court in New York, which was the child's habitual residence, continued to have an interim institutional right of custody.

[151] The court finds that the father has met his onus of establishing that the preconditions set out in Article 3 were met at the time of the children's removal. The issue of custody was before the North Carolina court for adjudication, including the adjudication of all incidents of custody. Thus, at a minimum, the North Carolina court was exercising its custody rights at that time.

[152] The court further finds that the father had and was exercising rights of custody at the time of the children's removal. Pursuant to section 20 of the Act, both parents, upon separation, have equal rights to custody of their children. The father did not relinquish any of these rights. Section 20 of the Act reads as follows:

Father and mother entitled to custody

20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

Where parents separate

(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

Marriage of child

(6) The entitlement to custody of or access to a child terminates on the marriage of the child.

Entitlement subject to agreement or order

(7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement.

[153] The father was actively involved in parenting the children and was exercising his rights of custody until the mother obtained the ex parte order in North Carolina. The court is troubled by the mother's argument that the father could be deprived of his rights of custody by an ex parte order, without him having had an opportunity to be heard. This concern is reinforced by the fact that the mother left North Carolina just two days before the father would have had his opportunity to have his evidence considered by the court.

[154] An ex parte order is a holding order with a limited shelf life. These orders are argued on the merits and adjudicated on the full record once the respondent has had an opportunity to respond and present his or her case to the court. In this case, the ex parte order did not eliminate the father's rights to custody or the exercise of his custodial rights – it merely held them in abeyance for a short period of time, while permitting him the opportunity to be heard and for the court to deal with the issues on their merits – a hearing that was imminent when the mother left. Any other interpretation would serve as an incentive for a parent to defeat a Hague Convention claim by obtaining an ex parte custody order, based on his or her evidence alone, and subsequently removing the children from the jurisdiction on the strength of that order, before the ex parte order could be reviewed.

[155] The danger of a court relying upon an ex parte order to remove a parent's rights to custody is apparent in this case. This court, after hearing from both parties, found that much of the evidence that the mother relied upon to obtain her ex parte orders in both North Carolina and Ontario was not credible.

[156] Lastly, as in Ryan, supra, the ex parte order did not give the mother an undivided right to remove the children from their residence in North Carolina.

[157] The court finds that the removal of the children from North Carolina was wrongful.

8.3 Article 13(b)

[158] The next step is to determine if the mother has established an exception to the return of the children under Article 13(b). Would returning the children to North Carolina expose the children to a grave risk of psychological or physical harm or place them in an intolerable situation?

8.3.1 Legal Considerations

[159] In arriving at its decision to order the return of a child to Scotland, the Supreme Court of Canada, in Thomson v. Thomson, supra, conducted an extensive study of the Convention and set out the general principles governing its interpretation by Canadian courts. With respect to Article 13(b), Justice Gérard V. La Forest stated, at pages 596-97 [S.C.R.]:

It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. . . . In Re A. (A Minor) (Abduction), supra, Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:

. . . the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree . . . that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words "or otherwise place the child in an intolerable situation".

[160] A child can be put at risk of psychological harm if he or she witnesses violence from one parent to another. See: Pollastro v. Pollastro, 1999 CarswellOnt 848 (Ont. C.A.).

[161] Justice Ellen Murray set out the following considerations in an Article 13 (b) analysis in Achakzad v. Zemaryalai, 2010 ONCJ 318:

a) There is no need to establish instances of physical harm or risk of such harm perpetrated directly against the child.

b) Children's exposure to violence against a caregiver can rise to the level of grave risk.

c) The gravity of a risk involves not only the probability of harm, but also the magnitude of the harm if the probability materializes.

d) The court should examine if the domestic violence is systemic, controlling and coercive.

e) Denial of the abuse increases the risk of future harm.

f) There are some cases where the danger presented by domestic violence is so high that the presumption that the requesting state will be able to provide such protection does not apply.

g) There are some cases where the danger presented by domestic violence is so high that undertakings given by the left-behind party will be inadequate to protect the moving party and the children if the children are ordered returned to their habitual residence.

[162] Justice Murray also reviewed the law in this area (in returning a child to Germany under the Hague Convention) in paragraph 29 of Czub v. Czub, [2012] ONCJ 566 as follows:

[29] Courts have sometimes refused to order the return of a child in cases where there is violence directed by the "left behind" parent towards a child's primary parent. In these cases, the violence has involved a prolonged course of conduct, involving severe assaults in circumstances in which the legal protections available in the home state have not been sufficient. Usually, however, the court does not find the existence of domestic violence a sufficient reason to refuse a return order, because of the presumption that the courts of a contracting state can and will provide sufficient protection to the parent. Claims under 13(b) have been rejected when the assaults have been minor or a one-time occurrence, or when the court finds that, although some violence may have occurred, that the claimant has no fear of other parent and is resistant to a return order for other reasons.

[163] The credibility of the party seeking the Article 13 (b) exception is an important determinant in whether the children are to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547, affirmed at Husid v. Daviau, 2012 ONCA 469.

[164] The court should consider whether undertakings given by the left-behind parent would be effective in remedying the risk of harm, when determining the Article 13 (b) exception. See: Cannock v. Fleguel, 2008 ONCA 758.

8.3.2 Analysis

[165] The court finds that the mother has not met her onus of establishing an Article 13 (b) exception. The level of domestic violence in this case does not approach that set out in the cases submitted by the mother. See: Achakzad v. Zemaryalai, supra; Callicutt v. Callicutt, [2014] M.J. No. 204 (Man.Q.B.); Pollastro v. Pollastro, supra; Rajani v. Rajani; Husid v. Daviau, supra.

[166] This case is also distinguishable from the cases submitted by the mother because here:

a) The mother was not a credible witness. She overstated the frequency and extent of the domestic violence. While the father's violence was not acceptable, it was not systemic, controlling and coercive, as described in the cases submitted by the mother.

b) The mother's evidence about her reason for leaving North Carolina (because she feared for the lives of her and the children) was not credible. It is far more likely that she left North Carolina due to her fear of sharing custody, if not losing custody of the children to the father and his family.

c) The mother also significantly contributed to the domestic violence and conflict in the family home.

d) The father has been compliant with and respectful of court orders. He cooperated with CPS. He has asserted his rights through the legal process.

e) The court finds that the father would comply with an order preventing him from having contact with the mother, thus removing the children from the worst aspects of the parents' domestic conflict.

f) The children enjoy a good relationship with the father. There is no indication that the father has ever physically or verbally abused them.

g) Acceptable safety provisions had been established for the mother and the children in North Carolina before she left.

h) The North Carolina courts are well equipped to make the necessary orders to continue this protection, if they find it warranted.

i) This court finds that the imposition of undertakings would satisfactorily address any risk concerns.

[167] The mother argued that her lack of immigration status in the United States might mean that she cannot re-enter the United States and if this happened, there would be a grave risk that this would cause the children psychological harm or place them in an intolerable position, if returned to the father.

[168] The court finds that the Article 13(b) exception is still not met for the following reasons:

a) It is speculative whether the mother would be unable to return or stay in the United States.

b) Even if the mother cannot return to North Carolina with the children, the father is experienced in caring for the children and has a loving relationship with them. He would have the assistance of his parents in caring for them. While the children would likely suffer some distress leaving their mother (as they likely have suffered some distress leaving their father), the court received no reliable evidence that such distress would approach the high threshold of grave risk of psychological harm or being placed in an intolerable situation as required by Article 13(b).

c) The mother has counsel in North Carolina. If she is unable to return to the United States she can still participate in the case in North Carolina (as the father participated in this case) and seek an order placing the children with her in Canada, based on best interests criteria.

d) The mother is trying to rely upon a status quo established through her wrongful actions. The mother knew or ought to have known that she risked not being able to re-enter the United States when she wrongfully removed the children to Canada. A primary purpose of the Convention is to discourage parents from using self-help to establish a status quo. A parent should apply for relief in the jurisdiction where the child is habitually resident if he or she believes that it is in the best interests of the child to move with the child to another jurisdiction. To give credence to this argument by the mother would defeat the purpose of the Convention.

[169] While the court finds that there was domestic violence witnessed by the children, the level of violence did not meet the standard required for an Article 13 (b) exception. The North Carolina court is very capable of crafting parenting terms (and any terms of a restraining order, if required) that will adequately address any risks to the children arising from the domestic conflict between the parties. The court finds it more probable than not that the father would comply with such terms.

8.4 Undertakings

[170] This court can impose undertakings to facilitate the return of the children to North Carolina during the transitional period before the court of their habitual residence takes over. See: Thomson v. Thomson, supra. Undertakings, by giving specific content to the order for return, are capable of defining the initial situation to which the children will return in the requesting State. See: Cannock v. Fleguel, supra. As part of these undertakings the court can require the parties to obtain a mirror order from the North Carolina court on the same terms of the undertakings. See: Czub v. Czub, supra.

[171] Since the purpose of the Hague Convention is to re-set the status quo, so that the issue of custody can be determined in the child's place of habitual residence, by a court hearing all of the evidence, undertakings are often ordered that the left-behind parent not enforce a chasing order. See: Commentary in The Hague Convention on Child Abduction: A Canadian Primer, Nicholas Bala and Mary Jo Maur, 2014.

[172] The undertakings proposed by the father were generally reasonable. The court will make the terms of the return of the children to North Carolina more specific, as follows:

a) The mother shall have temporary custody of the children.

b) The father shall have reasonable access to the children.

c) The mother shall exchange the children on access visits with a third party to be selected by the father.

d) The father shall be restrained from contacting or communicating with the mother, or coming within 300 yards of her, until further order of the North Carolina court.

e) The father shall maintain the mother and the children on his medical plan at work.

f) Before the mother is required to return the children, the father shall obtain an order on terms (a) through (e) above from the North Carolina court (the mirror order), to last until the temporary issues are argued in North Carolina on their merits.

g) The father will ensure that neither he nor his agents will interfere with the mother's ability to re-enter or remain in the United States.

h) The father shall use his best efforts to assist the mother to obtain legal status in the United States. However, the return of the children to North Carolina is not to be delayed while this process takes place.

i) Terms (g) and (h) above are not required to be included in the North Carolina order.

[173] The court considered ordering more extensive terms of return, such as making temporary support orders. However, based on its joint conference with the North Carolina court, this court is satisfied that the North Carolina court will be able to address the support issues in a timely manner. That court will be better suited to conduct an analysis of the appropriate amounts of support to order. It will also be better suited to determine an appropriate parenting schedule upon hearing from both parties.

[174] The mother will be required to return the children to North Carolina within seven days of the father providing her counsel, Ms. Crossley, with a copy of the mirror order from North Carolina.

[175] To ensure that the mother does not delay this process, if she does not execute a consent to the mirror order (if required by the court in North Carolina) within five days of it being presented to Ms. Crossley, she will be required to return the children forthwith, without terms.

[176] Further terms to ensure enforcement of this order will be made, as requested by the father.

[177] The order for the children to be returned to North Carolina is not conditional upon the mother being able to re-enter the United States. If the mother cannot re-enter the United States, the children are still to be returned to the father in North Carolina. If the parties are unable to agree on the logistics of this return, they may move to this court for further direction.

Part Nine – Recognition of a Foreign Order

[178] The result in this case would have been the same even if the Hague Convention did not apply – the children would be returned to North Carolina. The court will examine the two alternative arguments of the father. His first argument was not successful. The second argument was.

[179] The father first asks the court to recognize and enforce the February 16, 2015 order obtained by him in North Carolina that granted him temporary custody of the children and required the mother to return the children to North Carolina.

[180] Section 41 of the Act reads as follows:

41. (1) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,

(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;

(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;

(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;

(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or

(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.

Effect of recognition of order

(2) An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such.

Conflicting orders

(3) A court presented with conflicting orders made by extra-provincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child.

Further orders

(4) A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order.

[181] The mother argues that the court should not recognize and enforce the North Carolina order because clauses 41 (1) (a) and (b) of the Act both apply – the mother was not given reasonable notice of the commencement of the proceeding in North Carolina and she was not given a reasonable opportunity to be heard before the order that the father seeks to enforce was made.

[182] The existing custody proceedings were initiated by the father in a different jurisdiction in North Carolina than the jurisdiction where the mother brought her claim for a PRO. It is a different case.

[183] The father obtained his initial ex parte order on February 5, 2015. The mother was given no notice in advance of this motion and had no opportunity to address the court on that day.

[184] The father was served with the mother's Canadian court papers on February 6, 2015 and would have been aware of her address for service at that time. The mother was not served with the North Carolina court papers until Friday, February 13, 2015, when she was in this court. This did not give her a reasonable opportunity to be heard on Monday, February 16, 2015, when the ex parte order of February 5, 2015 was continued in North Carolina.

[185] In Ndegwa v. Ndegwa, the father proceeded ex parte in Kenya to obtain a temporary custody order. The father argued that once the mother had notice of this order, she still didn't move to set aside the order, so her defence claimed under clauses 41(1)(a) and (b) of the Act should fail. The court found that "waiting until after the order was made and then serving notice of the commencement of proceedings does not meet the requirement of…..reasonable notice of the commencement of the proceeding in which the order was made". The court also found in paragraph 15 of its decision that: "being heard" entails knowing the case to be met and having the opportunity to address the factual and legal issues in the case." The court did not recognize or enforce the order from Kenya for these reasons.

[186] Citing Ndegwa, the Ontario Court of Appeal, in British Columbia (Child, Family and Community Service) v. S.J.B., found, pursuant to clause 41(1)(b) of the Act, that parents in a child protection case did not have a reasonable opportunity to be heard when the Director of Child, Family and Community Service for the Province of British Columbia asked, pursuant to section 41 of the Act, for the Ontario courts to recognize and enforce an order obtained ex parte in British Columbia.

[187] The father argued that the mother should be precluded from raising this defence, because it was due to her own actions that he could not provide her with reasonable notice of the February 5 or 16, 2015 court dates in North Carolina. The father could provide no case law to support this argument. Section 41 is very clear as to when foreign court orders should be recognized and enforced. The exceptions in clauses 41(1)(a) and (b) are precise and emphasize the necessity of giving a respondent a reasonable opportunity to be heard before a foreign order can be recognized and enforced.

[188] The North Carolina court granted the father temporary custody of the child based on only the father's evidence, without any input from the mother. Service on a Friday in Canada prior to a hearing on Monday in North Carolina did not provide her with a reasonable opportunity to be heard before the North Carolina order was made. The evidence in this case is far more complex than was represented to the North Carolina court by the father. As this court has noted, after hearing from both parties, neither parent was a credible witness. There is a risk of considerable harm for children if the court recognized and enforced orders made under such circumstances. There are preferable remedies for the father, such as his claim under the Hague Convention and the remedy under section 40 of the Act that will be reviewed below.

[189] The court finds that the mother successfully established the exceptions under clauses 41(1)(a) and (b) of the Act, as she was not given reasonable notice of the commencement of the North Carolina proceeding and was not given a reasonable opportunity to be heard before the North Carolina order was made. The father's request to recognize and enforce the North Carolina order did not succeed.

Part Nine – Section 40 of the Act

[190] The jurisdictional discussion does not end there. Section 40 of the Act reads as follows:

Interim powers of court

40. Upon application, a court,

(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or

ii. such other conditions as the court considers appropriate.

3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

[191] This case was started in Ontario when the mother commenced an application on January 30, 2015, seeking custody, support, a restraining order and an order preventing the father from removing the children from Ontario. The father argues that the court does not have jurisdiction to hear the mother's application and asks the court, pursuant to section 40 of the Act to order it stayed and to order the children returned to North Carolina. The mother argues that this court does have the jurisdiction to hear her application and it should continue the temporary, without prejudice order made on January 30, 2015.

[192] The Act sets out the circumstances under which the court can accept jurisdiction of a custody case. Section 22 of the Act reads as follows:

Jurisdiction

22. (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) although the child is not habitually resident in Ontario, the court is satisfied,

(i) that the child is physically present in Ontario at the commencement of the application for the order,

(ii) that substantial evidence concerning the best interests of the child is available in Ontario,

(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,

(v) that the child has a real and substantial connection with Ontario, and

(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

Habitual residence

(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

Abduction

(3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.

[193] The mother conceded that this court does not have jurisdiction to hear her application pursuant to section 22 of the Act. Ontario is not the habitual residence of the children pursuant to clause 22 (1) (a) of the Act. If the court does not have jurisdiction under this clause, it can still find jurisdiction to hear the case under clause 22 (1) (b) of the Act, but only if all six conditions in the clause are met. See: Turner v. Viau, [2002] O.J. No. 1229 (Ont. C.A.). Since there was an application for custody pending in North Carolina when the mother started her case in Ontario (one of the six conditions), this court lacks jurisdiction to hear this case under clause 22 (1) (b) of the Act.

[194] The mother argued that the court should assume jurisdiction of the case pursuant to section 23 of the Act that reads as follows:

Serious harm to child

23. Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario.

[195] The legal test to establish serious harm to a child has been equated with the grave risk of harm test set out in Article 13 (b) of the Hague Convention. See: Thomson v. Thomson, supra. The Act is intended to discourage parents from resorting to self-help in removing children from their habitual residence, without a court order, except in very limited circumstances.

[196] The mother wrongfully removed the children from North Carolina. She had started court proceedings in North Carolina and the father had responded. In the face of those proceedings, she unilaterally decided to remove the children from their habitual residence, without the prior permission of the court. For the same reasons that the mother could not meet her onus in showing a grave risk of harm to the children under the Hague Convention, she did not meet her onus of establishing that the children would suffer a serious risk of harm, under section 23 of the Act, if they were removed from Ontario or placed with the father.

[197] The proper jurisdiction to hear this case is in North Carolina. If the mother wants to move with the children to Canada she must make that claim in the proceeding pending in North Carolina and obtain such an order.

[198] Pursuant to section 40 of the Act, since the court has determined that the removal of the children from North Carolina was wrongful and it does not have jurisdiction to hear the mother's application, it may make temporary orders to facilitate the return of the children to North Carolina and to establish transitional parenting terms until the North Carolina court can address the parenting issues on their merits. Even if the Hague Convention did not apply, the court would order that the children be returned to North Carolina pursuant to this section. Their return would be on the same terms as set out in paragraph 172 above.

Part Ten – Conclusion

[199] An order shall go on the following terms:

1. The children are to be returned to their habitual residence in North Carolina on the following terms and conditions:

a) Until such time as the North Carolina court determines a motion to be brought, on notice, for temporary parenting arrangements for the children:

i) The mother shall have temporary custody of the children.

ii) The father shall have reasonable access to the children.

iii) The mother shall exchange the children on access visits with a third party chosen by the father.

iv) The father shall be restrained from contacting or communicating with the mother, or coming within 300 yards of her.

v) The father shall maintain the mother and the children on his medical plan at work.

b) The father shall obtain a mirror order from the North Carolina court containing the terms set out in subparagraph 1 (a) above.

c) The children shall be returned to North Carolina within seven days after the mirror order is delivered to the mother's counsel, Ms. Crossley.

d) If the mother's signed consent to the mirror order is required by the North Carolina court, she shall sign and return it within 5 days of it being presented to Ms. Crossley. If the mother fails to comply with this term, she will be required to return the children to North Carolina, without terms, forthwith.

e) The following undertakings are ordered:

1. The father will ensure that neither he nor his agents will interfere with the mother's ability to re-enter or remain in the United States.

2. The father shall use his best efforts to assist the mother to obtain legal status in the United States. However, the return of the children to North Carolina is not to be delayed while this process takes place.

f) This order is not conditional upon the mother being able to re-enter the United States. If the mother cannot re-enter the United States, the children are still to be returned to the father in North Carolina. If the parties are unable to agree on the logistics of this return, they may move to this court for further direction.

g) The mother, or any agents acting on her behalf, shall not remove the children from the City of Toronto pending her delivery of the children to North Carolina.

h) If the mother fails to deliver the children to the father as required by this order, or breaches this order, all police forces where the children are located, including, but not limited to the Toronto Police Force, Ontario Provincial Police and the Royal Canadian Mounted Police shall forthwith locate, apprehend and deliver the children to the father, pursuant to section 36 of the Children's Law Reform Act. They shall also provide the father with all necessary assistance to ensure the prompt return of the children to North Carolina.

i) The mother shall ensure that the children speak to the father by telephone each Sunday until they are returned to North Carolina.

j) The temporary order of this court, dated January 30, 2015, is terminated.

k) The mother's application is stayed, subject to costs submissions.

[200] If the father wishes to seek his costs of this proceeding, he may serve and file written submissions by April 20, 2015. The mother will have until April 30, 2015 to reply. The submissions shall not exceed three pages, not including any bill of costs or offer to settle. They shall be delivered to the trial coordinator's office on the second floor of the courthouse.

[201] Court staff shall send copies of this decision to the Honourable Madam Justice Rawls and counsel for the parents in North Carolina.

[202] Lastly, I thank counsel for their excellent presentation of this case.

Justice S.B. Sherr

Released: April 9, 2015