COURT FILE AND PARTIES

COURT FILE NO.: FS-12-18282
DATE: 20121119
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ADAN MCINTOSH, Applicant

AND:

**ANITA KIM, Respondent

BEFORE: PENNY J.

COUNSEL:
Sarah E. Mott-Trille for the Applicant
Ghina Al-Sewaidi for the Respondent

HEARD: November 15, 2012

REASONS FOR DECISION

The Issues

[ 1 ] This is an application for a declaration that the three children of the parties:

A. (born […], 2008);

D. (born […], 2010); and

K. (born […], 2012)

are being wrongfully detained in Ontario by the respondent and that such retention constitutes a wrongful removal or detention of the children under Article 3 of the Hague Convention . The applicant also seeks an order for the return of the children to their habitual residence in Canberra, Australia and other collateral and associated relief.

[ 2 ] Article 3 of the Convention provides that the removal or retention of a child is considered wrongful where it is in breach of custodial rights under the law of the state in which the child was habitually resident immediately before the removal or detention.

[ 3 ] There are various components to the test under Article 3 but it was common ground during the argument of this application that the applicant met the requirement of having custodial rights with respect to the children at all material times. Accordingly, the principal issue of controversy is whether the children were habitually resident in Australia or Canada at the material time.

[ 4 ] The issues on this application are:

(1) Has there been a wrongful removal or retention (this turns on the issue of habitual residence)?

(2) Did more than one year elapse between the wrongful removal or retention and this application?

(3) Did the applicant consent or acquiescence to the removal or retention?

(4) Is there a grave risk that the return of the children to Australia would expose them to physical or psychological harm or otherwise place the children in an intolerable situation? and

(5) Did the applicant attorn to the jurisdiction of the Ontario Court of Justice?

Background

[ 5 ] The applicant father is 33 years old. He was born in Australia.

[ 6 ] The respondent mother is 31 years old. She was born in Toronto.

[ 7 ] The applicant and respondent are the parents of the three children.

[ 8 ] The applicant and respondent met and began dating in Toronto in 2005. They began living together in England in September 2008. Their first child, A., was born in 2008 in England. A. is a citizen of both Australia and Canada.

[ 9 ] The family returned to Toronto in December 2008 and then went to Australia for six weeks to visit the applicant’s family. They returned to Toronto in March 2009, where they lived until July 2010. The parties’ second son, D., was born in Toronto in […] 2010. He too is a citizen of both Canada and Australia.

[ 10 ] In July 2010, the parties decided to move to Australia. The applicant gave up his Toronto job. They gave up the lease on their Toronto apartment, stored some belongings with respondent’s mother and sold the rest. The respondent went to Australia on a visitor’s visa although it was their intention that the applicant would sponsor the respondent once they had saved enough money for the expensive sponsorship application process.

[ 11 ] In Australia, the family acquired a one-year lease on an apartment near Brisbane. They furnished the apartment with furniture and contents purchased in Australia. They also purchased a car. The parties still have this vehicle and it continues to be registered in Australia in the applicant’s name. The car insurance is in the respondent’s name.

[ 12 ] In November 2010, the applicant accepted full-time employment with the Australian federal government in Canberra. His job was to commence March 2011. The applicant remains employed by the Australian federal government in this position.

[ 13 ] The parties began to experience difficulties in their relationship. The respondent alleges that the applicant was physically and verbally abusive, and that he engaged in sexual relations without her consent. These allegations are denied. The respondent says she went to a womens’ crisis centre and was told to file a complaint with the police but she never did.

[ 14 ] In December 2010, the parties participated in several sessions with a dispute resolution practitioner in Australia in an attempt to work out their family issues and to formulate a parenting plan for the children. Participation in family dispute resolution is required by the family courts of Australia prior to any party lodging any requests with the Australian courts.

[ 15 ] Also in December 2010, the parties flew to Canberra to investigate the city in anticipation of moving there for the applicant’s new job. They also submitted the forms necessary to extend the respondent’s Australian visitor’s visa.

[ 16 ] In January 2011, following a visit from the respondent’s mother in Australia, the respondent announced that she wanted to return to Toronto with her mother for a longer visit.

[ 17 ] The applicant first wanted to complete the parenting plan they had started working on but the respondent, after obtaining legal advice, refused to do so. As a result, the parties agreed that the respondent could take the children to Toronto for a visit with her mother on the condition that the respondent and the children return to Australia in March 2011, when the applicant was scheduled to commence his employment with the Australian federal government in Canberra.

[ 18 ] With the applicant’s consent, therefore, the respondent and the children returned to Toronto with her mother in January 2011. The applicant followed shortly thereafter to be with his family. While in Toronto, the applicant shared a room with respondent and the children at the respondent’s mother’s two bedroom condominium. In addition, four adult students boarded at the mother’s place.

[ 19 ] Ten days after the applicant’s arrival, there was a dispute between the parties at the condominium during which the respondent told the applicant to leave. The applicant tried to leave with A. A scuffle ensued when the respondent and her mother tried to prevent the applicant from taking A. with him. This resulted in mutual allegations of assault. The police were called. The applicant was arrested, charged and incarcerated. He was released on bail with a trial scheduled in Toronto for October 31, 2011. After his release, the respondent consented to the applicant having unsupervised access with the children. A. stayed with the applicant overnight from time to time.

[ 20 ] Around the same time, the respondent also disclosed to the applicant that, before he had arrived in Toronto in February 2011, she had filed an application in the Ontario Court of Justice for custody of the children and child support. The respondent told the applicant, however, that she had withdrawn the application.

[ 21 ] The applicant returned to Australia in March 2011 to start his new job in Canberra. As the parties had agreed, and because she wanted “to work on their relationship,” the respondent returned to Australia with the children in May 2011 and joined the applicant in Canberra. Their tickets for this travel were purchased as return tickets with a return date of October 25, 2011, as the parties needed to return to Toronto for the applicant’s October 31, 2011 trial in which the respondent was to be a witness.

[ 22 ] The family lived together in Canberra Australia between May and October 2011. In Canberra, the family moved into an apartment in nearby Kingston. They signed a one-year lease for this apartment. They continued to use their same telephone number, the car and other personal and household possessions which they had left in Australia. The respondent opened accounts for her cell phone and internet access and for their electricity service with the local utility company. The respondent also opened a bank account at a local credit union, joined the Australian Capital Territory library and signed up for weekly yoga. The respondent also purchased an annual pass to the local science and technology center in Canberra for the children. The parties had regular playgroups for the children with their friends and regularly associated with the applicant’s family. A. and D. have a close relationship with the applicant’s parents and extended family. The parties enrolled A. in a French/Australian preschool in Canberra for the 2012 academic school year, which was to start in January 2012, and paid the advance deposit for this enrolment.

[ 23 ] The respondent became pregnant with their third child. The parties’ relationship difficulties continued, however. The respondent was feeling depressed and wanted to spend more time during the pregnancy with her family. It was initially agreed that, upon their return to Toronto in October 2011, the father would stay for about three weeks and that the respondent would remain for an additional 3 to 6 weeks. Later, the applicant discovered an opportunity for a temporary posting at the Australian Embassy in Washington D.C. As a result, the parties agreed that the respondent and the children would stay temporarily in Canada until their third child was born, given the difficulties the respondent had experienced in her pregnancy with their second child. The parties, accordingly, deferred A.’s enrolment in the Australian/French school to January 2013.

[ 24 ] In late September 2011, before leaving Australia, the applicant asked the respondent to sign a consent order regarding custody of the children. In mid-October 2011, the respondent obtained legal advice and refused to sign. This made the applicant uncomfortable about allowing the respondent to leave Australia with the children to have an extended stay in Canada as they had agreed. The respondent reassured the applicant and solemnly promised him that she would return with the children to Australia. On October 21, 2011, the respondent solemnly swore to the applicant three times on each of their two children and their unborn child that she would not apply for custody of the children in Toronto, that her trip to Toronto with the children was a temporary one and that she would return to Australia with the children as they had agreed.

[ 25 ] It is the respondent’s evidence that she was suffering physical and emotional abuse from the applicant, felt isolated and “did what she could to get out of a dangerous situation.” She admitted, however, in cross-examination that the last incident of alleged violence she was concerned about had taken place more than a year earlier in September 2010.

[ 26 ] The respondent also agreed that there was nothing preventing her from booking a ticket for herself to return to Canada. She also said that she obtained legal advice in Australia to the effect that, because of the Hague Convention , if she “booked tickets without the father’s consent, that the children may be ordered back to Australia. That is why I waited until the 25 th of October to have our return flights back to Canada.”

[ 27 ] The family flew to Toronto on October 25, 2011 for the applicant’s trial. The parties took with them some clothing and personal possessions. The bulk of the children's toys books etc. and the parties’ belongings, including the car, remained in Australia. They sublet their apartment for three weeks.

[ 28 ] After the parties arrived in Toronto, they discovered that the applicant’s trial had been rescheduled to May 12, 2012. The parties agreed that the respondent would remain in Toronto until after the outcome of the applicant’s trial and the birth of their third child. The applicant remained in Toronto with the family until November, 2011, when he returned to his job in Canberra.

[ 29 ] The applicant was then able to confirm the temporary posting to the Australian Embassy in Washington D.C., commencing in January 2012.

[ 30 ] The applicant flew back to Toronto in December to take up the temporary posting in Washington. As they could not afford to keep the unused Canberra apartment, the applicant terminated the lease.

[ 31 ] Commencing in January 2012, the applicant took the bus to Washington D.C. for his employment and, each weekend, returned to Toronto to spend time with the respondent and the children. Due to the applicant’s bail conditions, he could live with the family at the respondent’s mother’s home.

[ 32 ] The respondent shared a bedroom with the children in her mother’s condominium. Her mother lived in the den. The other bedroom was occupied by two adult student boarders. The respondent did not seek employment and went on social assistance.

[ 33 ] The applicant’s Washington posting ended at the end of March 2012. The applicant returned to Toronto for the birth of their third child, which took place on […], 2012, and to await his trial in May.

[ 34 ] On May 15, 2012, following the applicant’s trial, he was acquitted of all charges. The presiding judge heard evidence from the respondent and her mother. She founded the respondent’s evidence “somewhat vague and contained a number of inconsistencies between her testimony and the original statement she gave the police,” that she “did not really describe an assault,” that her testimony “was most unhelpful” and the judge “placed very little weight on it.” The trial judge found the respondent’s mother’s testimony to be “neither credible nor reliable.” She also found that the applicant had not been legally prohibited from leaving the condominium with any of his children at the time of the alleged assault.

[ 35 ] Following his acquittal, the applicant’s bail conditions were immediately removed and he had unrestricted access to his children.

[ 36 ] Three days later, the respondent commenced an application in the Ontario Court of Justice seeking custody and child support. After the first attendance, the applicant sought legal advice, learned about the Hague Convention and told the respondent that he would be bringing an application for the return of the children to Australia.

[ 37 ] During the month of June, the respondent allowed the applicant to have the children in his care unsupervised. Nevertheless, on July 3, 2012, the respondent brought an ex parte motion seeking custody of the children and restraining orders against the applicant.

[ 38 ] As a result, the respondent obtained an emergency ex parte order from the Ontario Court of Justice on a temporary, without prejudice basis granting the respondent custody of the children, denying the applicant any access to the children pending further court order and providing that the applicant was not to remove the children from Ontario or the care of the respondent without further order of the court. The matter was adjourned to July 25, 2012.

[ 39 ] On July 13, the applicant commenced his application to the Central Authority seeking a return of the children under the Hague Convention . He sought legal aid and began looking for legal counsel. On July 20, 2012, the Central Authority of Ontario faxed to the Ontario Court of Justice a Notice concerning the children under Article 16 of the Hague Convention.

[ 40 ] On the return of the motion on July 25, 2012, the applicant gave the Ontario Court of Justice a written notice that he was not attorning to the Ontario jurisdiction and advising the court that he had made a request for return of the children under the Hague Convention .

[ 41 ] Nevertheless, the court made a further temporary, without prejudice custody order in favour of the mother; the order permitted the applicant supervised access three times a week.

[ 42 ] Since that time, the applicant has commenced family law proceedings in the Australian courts. There has been no decision or order resulting from those proceedings as yet.

Habitual Residence of the Children

[ 43 ] The removal or retention of a child is to be considered wrongful where it is in the breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal or retention. Rights of custody may arise by operation of law, by reason of judicial decision or by agreement.

[ 44 ] The wrongful retention begins from the moment of the expiration of access where the original removal was with the consent of the rightful custodian of the child.

[ 45 ] Under Australian law, both parties had rights of custody with respect to the children when the parties left Australia and came to Ontario in 2011. Accordingly, both parties had parental responsibility for and joint parental authority over the children.

[ 46 ] The question of habitual residence is a question of fact to be decided in all the circumstances. A person’s habitual residence is the place where that person resides for an appreciable period of time with a “settled intention” to do so. A “settled intention” is an intention to stay in a place, temporarily or permanently, for a particular purpose, such as employment or family. A child’s habitual residence is tied to that of the child’s parents or custodians.

[ 47 ] The respondent maintains that due to their peripatetic lifestyle and her own ambivalence about Australia and her relationship with the applicant, Australia was never the habitual residence of their children.

[ 48 ] I do not accept this argument. The evidence makes it clear that there was a settled intention to reside in Australia at least during the period from July 2010 to October 2011. The parties leased an apartment, and bought furnishings and a car. They made friends and arranged play dates with other children. The applicant obtained a full-time job. They enrolled their oldest child in pre-school. The parties undertook relationship counselling. Their return to Canada in January 2011 was temporary and explicitly with the intention to return to Australia for the applicant’s new job, which they did.

[ 49 ] In my view, these incidents of daily life establish conclusively that Australia was the habitual residence of the two children until at least October 2011.

[ 50 ] The respondent’s main argument, however, is that Toronto became the habitual residence in October 2011 when the parties returned to Canada for the applicant’s criminal trial. Throughout that time, until recently, the respondent lived with the children at her mother’s condominium in Toronto.

[ 51 ] The respondent was born and raised in Toronto and asserts that she has strong ties to the city. She has relatives and friends here who know and assist her. She maintains that she only went to Australia on a visitor’s visa. She asserts that she and the children have a comfortable home in Toronto and that she has enrolled A. in senior kindergarten here.

[ 52 ] The respondent relies on Re B (A Minor) (Abduction) (No.2) (1993), 1 F.L.R. 993 for the proposition that “Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settlement purposes as part of the regular order of their life for the time being whether it is of short or of long duration.” In that case it is also said that “all that the law requires for a settled purpose is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.”

[ 53 ] It is important to remember that the applicant is not required to prove that the respondent intended to reside in Australia permanently or that she had abandoned or deserted Canada.

[ 54 ] The habitual residence of a child is in the state where both parents lived together with the child. Neither parent can change it unilaterally. A wrongful retention does not bring about a change in the habitual residence of the child as it is a unilateral action. One parent cannot change the habitual residence of a child without the agreement of the other parent having custodial rights.

[ 55 ] The applicant never consented to the children remaining in Canada beyond the conclusion of his criminal trial and the birth of their third child. Due to his secondment, he spent most of his time in Washington. There was no “shared” intention to reside in Canada. The applicant consented to the children travelling to Ontario for a limited time and purpose. Without the applicant’s consent, removal of the children from Australia would have been unlawful. This was precisely the advice received by the respondent when she made inquiries while still in Australia. The respondent has admitted that she lied to the applicant to deceive him in order to obtain his consent to the children travelling to Canada.

[ 56 ] Also, I do not think it can be said, in the language of Re B (A Minor) (Abductions) (No. 2) , that the applicant adopted Canada as the place of his abode “voluntarily.” The applicant was compelled to return to Canada by virtue of his pending criminal trial on charges based on the respondent’s, and her mother’s, complaints. The delay in the trial from October 2011 to May 2012 was not of the applicant’s making or desired by him.

[ 57 ] Finally, I do not think evidence of the children’s ties to Toronto after May 2012 is relevant to the question of habitual residence. This is because such events or occurrences resulted from unilateral action on the respondent’s part after the alleged wrongful detention of the children had taken place, see Wentzell-Ellis v. Ellis 2010 ONCA 347 , 2010 CarswellOnt 2981 at para. 23 .

[ 58 ] The situation of the newborn, K., is unique in that K. was born here in […] and has never been to Australia. On this issue, I agree with the analysis of the United States District Court in Uzoh v. Uzoh 2012 WL 1565345 (N.D. Ill.) released May 2, 2012. In that case, District Judge Conlon said:

Birth in the United States does not automatically render the son’s habitual residence as the United States… A preponderance of the evidence established that the shared actions and intent of the parents before the son’s birth was that he would reside in the family home in England. This is sufficient to show that the son’s habitual residence was in the United Kingdom. The mother’s argument that her son’s habitual residence is in the United States lacks merit, given that his residence in the country since birth was due to her wrongful retention.

[ 59 ] At best, K. would have no habitual residence until living in a country on a footing of some stability, see Clive, “The Concept of Habitual Residence” The Juridical Review, Pt. 3 (1997). I do not think K.’s or his parents’ living arrangements in Toronto since his birth in […] could be described as a “footing of some stability.”

[ 60 ] For these reasons, I find that the children A., D. and K. are habitually resident in Australia, that the children are being wrongfully detained in Ontario by the respondent and that such retention constitutes a wrongful removal or detention of the children within the meaning of Article 3 of the Hague Convention . The precise timing of this wrongful detention will be dealt with in the next issue below

Has One Year Elapsed?

[ 61 ] The respondent argues that the one year time limit under Article 12 of the Convention began to run on October 25, 2011 when the family left Australia for Canada.

[ 62 ] The respondent argues that the applicant only pursued his Hague Convention application just prior to the expiry of the one-year limitation period. This, she says, is contrary to the policy of the Convention as the children are now settled in their new environment here.

[ 63 ] I do not think this argument can prevail. In my view, the respondent’s wrongful detention of the children took place in May 2012 when she initiated legal proceedings for custody in the Ontario Court of Justice. Up to that point in time, the presence of the children in Canada was explicitly with the applicant’s consent.

[ 64 ] Once served with the respondent’s application, the applicant acted expeditiously in determining and asserting his Hague Convention rights.

[ 65 ] For this reason, I conclude that the one-year limitation period has neither elapsed nor, at the material time, was even close to elapsing.

Consent/Acquiescence

[ 66 ] Article 13 of the Convention provides that the requested state is not bound to order the return of a child if the person resisting the return establishes that the opposing party “consented to or subsequently acquiesced in the removal or retention.”

[ 67 ] The respondent argues that the applicant traveled with the children and respondent to Toronto in October 2011. She argues that the applicant’s behaviour is inconsistent with his claim that the children were wrongfully removed Australia. The applicant purchased the tickets. He was aware the children were leaving Australia. He did not purchase return tickets.

[ 68 ] The respondent argues that the applicant may now regret his consent to relocation to Toronto but to find in the applicant’s favour would be to reward the applicant for something he consented to and never disputed but now, unfortunately, regrets.

[ 69 ] In my view, the fact that the applicant agreed that the respondent could bring the children to Canada in October 2011 cannot be interpreted as an agreement to allow the respondent to change the childrens’ habitual residence. The applicant’s consent to the children being in Canada was for a limited time and purpose; there was no settled intention to reside here. He spent most of his time, from January 2011 to the end of March, working in Washington. The respondent essentially “boarded” with her mother and several other adult students. In Thomson v. Thomson , 1994 SCC 26 , [1994] 3 S.C.R. 551 the Supreme Court of Canada found that a wrongful retention occurs in a situation of refusal to return a child after a trip abroad even where the original removal was with the consent of a rightful custodian. That is the situation here.

[ 70 ] Further, the evidence is clear and unequivocal that the respondent promised the applicant that she would return to Australia with the children and would not seek custody of the children in Ontario. The respondent admits that she “lied” to the applicant and “broke her promise” to him. Accordingly, any consent or acquiescence of the applicant is, in the circumstances of this case, vitiated by the respondent’s deceit, Re B (A Minor) (Abduction), supra, p. 9. [1]

Grave Risk of Harm

[ 71 ] Article 13(b) of the Convention provides that a child will not be returned to a place where 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.

[ 72 ] According to Thompson v. Thompson, supra , the risk has to be more than ordinary risk or something greater than would normally be expected on taking a child away from one parent and passing him to another.

[ 73 ] The Supreme Court of Canada in that case stated:

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.

[ 74 ] The respondent admits that the applicant is a loving father, devoted to his children, and that he has spent a significant amount of time caring for and sharing activities with them. Indeed, the respondent voluntarily entrusted the children to the applicant’s care on an unsupervised basis, even after commencing her proceedings in the Ontario Court of Justice. Such conduct is inconsistent with an allegation that a return to Australia would expose the children to physical or psychological harm.

[ 75 ] While there are allegations of physical abuse by the applicant against the respondent (these allegations are denied), there is no evidence of any violence or abuse ever directed against the children. Even evidence that a father had struck the mother or was irresponsible and disrespectful toward a mother is not sufficient reason to deny an application under the Convention , see Finizio v. Scoppio-Finizio 1999 CarswellOnt 3018 ; Wentzell-Ellis v. Ellis, supra; and Cannock v. Fleugel , 2008 ONCA 758 , [2008] O.J. No. 4480.

[ 76 ] The right to decide custody should be left to the courts of the place where the children are habitually resident. Domestic courts should strenuously resist parental efforts to undermine the integrity of the Hague Convention by exploring the merits of the custody case except in connection with one of the clear exceptions to the automatic return provisions of the Convention . The domestic court should not become sidelined into an inquiry on the merits of a custody dispute, see Hague Convention , Articles 16 and 19; Thomson v. Thomson , supra; and Cannock v. Fleugel, supra .

[ 77 ] In the circumstances of this case, I cannot conclude that there is any material risk of harm to the children, within the meaning of the Hague Convention , should the parents’ domestic and parental conflicts be referred back to the courts of Australia where the children are habitually resident.

Did the Applicant Attorn to the Ontario Jurisdiction?

[ 78 ] The respondent argues that the applicant has attorned to the jurisdiction of the Ontario Court of Justice and is therefore precluded from raising the Hague Convention . The respondent relies, for this argument, on the fact that the applicant has been residing in Ontario since October 2011, has been exercising rights under an access order made by the Ontario Court of Justice and has not appealed the issue of jurisdiction or asked the Ontario Court of Justice to decline jurisdiction.

[ 79 ] In my view, the facts do not bear out this argument. The applicant raised jurisdiction at the earliest opportunity. Further, the applicant initiated his assertion of rights under the Hague Convention at the earliest opportunity. The fact that the applicant has obeyed an order of the Ontario Court of Justice cannot be held against him on the jurisdictional front. This is because the applicant is bound to obey that order whether or not he contests the jurisdiction of the court to have made it.

[ 80 ] For this reason, I find that the applicant has not attorned to the jurisdiction of the Ontario Court of Justice.

Conclusion

[ 81 ] In conclusion, an order shall issue that the children A., born […], 2008, D., born […], 2010 and the child now known as K., born […], 2012 are being wrongfully detained in Ontario by the respondent and that such retention constitutes a wrongful removal or detention of the children from Australia within the meaning of Article 3 of the Hague Convention .

[ 82 ] An order shall also issue for the return of the children to their habitual residence in Canberra, Australia in the parties’ joint custody or, failing the respondent’s co-operation, in the applicant’s sole custody.

[ 83 ] An order shall also issue directing the police in the Toronto area, including but not limited to the Peel Regional Police, the Ontario Provincial Police, the Metropolitan Toronto Police and the Royal Canadian Mounted Police:

1. to locate, apprehended and deliver the children to the applicant and/or to accompany and assist the applicant in picking up the children for the purpose of returning them to their habitual residence in Australia;

2. to enter and search any place where the police believe, on reasonable and probable grounds, that the children may be, with such assistance and force as are reasonable in the circumstances, and at any time, including times that are not between 6 a.m. and 9 p.m. standard time,

with the proviso that this paragraph of the order shall expire on March 18, 2013 pursuant to sections 36(5), (6) and (7) of the Childrens’ Law Reform Act.

[ 84 ] An order shall also issue requiring any person, including but not limited to the respondent, to provide the applicant, this court and/or the police forces referred to above, with full particulars of the whereabouts of the children, full particulars of the whereabouts of the respondent and copies of all records pertaining to the children and/or the respondent pursuant to Article 7 of the Hague Convention and section 39 of the Childrens’ Law Reform Act.

[ 85 ] Other than for the purposes of returning the children to their habitual residence in Australia, all persons having notice of this order are prohibited from removing the children from the Toronto area pending the return of the children to Australia.

[ 86 ] Subject to the terms of this order, the Family Court office shall release to the applicant his passport and the passports of A. and D. and shall release to the respondent her passport.

Costs

[ 87 ] I encourage the parties to seek to resolve the issue of the costs of this application on their own. If, however, they are unable to do so, written submissions, not to exceed three typed, double spaced pages, maybe filed, supported by Bill of Costs and other relevant supporting material. Any party seeking costs shall do so by filing the above submission within two weeks of the release of these Reasons. Any party wishing to respond to a request for costs shall file their submission, subject to the same limitation, within a further two weeks.

PENNY J.

Date: November 19, 2012

[1] My references to the respondent’s “deceit” are only in the context of the issue of habitual residence and the parties travel between Australia and Canada. This is not a finding on the merits of the parties’ claims to custody and access going forward.