COURT FILE NO.: FC-15-2209-1 DATE: 20160609 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gregory Thomas Wirta, Applicant AND Erin Elisabeth Wirta, Respondent

BEFORE: Madam Justice J. Mackinnon

COUNSEL: Alison Boyce, for the Applicant Allan T. Hirsch, for the Respondent

HEARD: April 14, 2016

ENDORSEMENT

Overview

[1] On August 27, 2015, the parties attended at the Canada-U.S. border crossing at Alexandria Bay, NY/Lansdowne, ON, together with their children, planning to enter Canada and take up residence in Ottawa. The parties had already leased a house in Ottawa, packed up their house in Seattle, Washington, shipped their belongings to Ottawa and enrolled the children in school in Ottawa. The Respondent mother, Ms. Wirta, had already moved to Ottawa and started working.

[2] Unfortunately, the criminal record of the Applicant father, Mr. Wirta, barred his entry to Canada. He remained in the United States while the mother and the two children entered Canada and continued on to Ottawa. They have resided at the leased house and the children have been attending school in Ottawa since that date.

[3] Although the parties jointly and individually took various steps to attempt to facilitate Mr. Wirta’s admission into Canada in the days and weeks that followed, the effort was unsuccessful and Mr. Wirta remains in the United States and inadmissible to Canada.

[4] Mr. Wirta now brings this application under the Hague Convention [1], alleging that the children have been either wrongfully removed from the United States or wrongfully retained in Ontario, and seeking an order returning the children to Seattle, Washington. He submits that the family decision to move to Ottawa ceased to be a joint decision when he was denied entry to Canada. In other words, he consented to a family move to Ottawa, but not to Ms. Wirta and the children moving without him. Moreover, he alleges that the entire move was orchestrated by Ms. Wirta and that she intended to move to Canada with the children but without him. He claims her misrepresentations vitiate any consent he may have given to the proposed change of residence for the children.

[5] Ms. Wirta’s position is that Mr. Wirta consented to and actively participated in the children’s relocation to Ottawa, which she states has been their habitual residence since August 27, 2015. Her refusal to return the children to the U.S. after that date is therefore not “wrongful” because their habitual residence had changed to Ottawa prior to the request for return. Alternatively, she submits, Mr. Wirta acquiesced in their retention in Ottawa by continuing to seek a temporary residency permit after the children arrived here.

[6] For the reasons that follow, I find that the children were not wrongfully removed from the United States and nor are they being wrongfully retained in Ottawa. The parties mutually agreed to leave their former habitual residence in Seattle and to establish a new habitual residence for themselves and the children in Ottawa, Ontario. Although the plan did not work out as anticipated with respect to Mr. Wirta’s immigration, this does not and cannot, without more, revoke or vitiate his consent to his children’s relocation to Ottawa such that their retention in Ottawa becomes “wrongful”. Accordingly, the application for the return of the children is dismissed.

Facts

[7] In March 2015 Ms. Wirta, who is a Canadian citizen, suggested to her husband that she should apply for a job transfer to Ottawa, with a view to moving the family from Seattle, Washington where they were residing with their two children. Mr. Wirta is an American citizen with a criminal record. He was concerned his record might pose a problem, but Ms. Wirta said she had legal connections in her family who would help with the immigration process. Ms. Wirta was the sole financial support for the family. Mr. Wirta decided that what was good for her career would be good for the family. Ms. Wirta submitted her application for the job transfer.

[8] She obtained the transfer with a start date in Ottawa in June 2015. Ms. Wirta came ahead on her own. Ms. Wirta filed the immigration application for the rest of the family. The plan was that the children would finish the school year in Washington State, and then Mr. Wirta would drive them east. The parties jointly signed a lease for a house in Ottawa in April 2015. The household belongings were shipped east in May.

[9] Mr. Wirta left Washington State with the children on August 23. Prior to his departure on August 21, Ms. Wirta contacted him to say there might be a “hiccup” at the border because his immigration status did not show a status of “pending”. She told him with a “pending” status he would be allowed to enter Canada. He asked her specifically to promise that he was not just delivering the children to her, and she reassured him that she was still confident it would all be resolved by the time he and the children reached the border. On August 26, she again informed him that his status was not yet showing as “pending” and again reassured him.

[10] In my view if Ms. Wirta were trying to set up her husband in the way he suggests, she would not have alerted him in advance to the possibility of a problem at the border, especially before he had left Seattle with the children and again while he was still in the United States with them.

[11] On August 27, Mr. Wirta and the children arrived at the border crossing in Alexandria Bay, New York. Ms. Wirta and her mother had crossed into the United States to meet them. As noted, there was no problem with the children entering Canada, but Mr. Wirta was turned down. Mr. Wirta deposes that despite his being denied entry to Canada, Ms. Wirta wanted to take the children to Ottawa to begin getting them ready for school.

[12] In the result, the children, Ms. Wirta and her mother drove to Ottawa with the understanding that Mr. Wirta would try again over the next few days. Meanwhile Ms. Wirta would contact her relations for help.

[13] Both parents continued to pursue their joint decision after August 27. Ms. Wirta contacted her stepfather, an American attorney, for assistance. She contacted her uncle at CSIS in Ottawa for advice. She also contacted an Ottawa lawyer who provided a written opinion that supported Mr. Wirta’s eligibility to enter Canada. Mr. Wirta obtained several reference letters to support his subsequent attempts to enter Canada.

[14] Mr. Wirta was also denied entry to Canada on August 29, but he was given a meeting with a Superintendent on September 1. Mr. Wirta attended this meeting on September 1 with Ms. Wirta, who had returned to the border with the children. She also brought the letters from her stepfather and the Ottawa lawyer setting out the legal basis for Mr. Wirta’s entry into Canada. I consider this conduct of Ms. Wirta to be inconsistent with Mr. Wirta’s theory that she was trying to set him up.

[15] Mr. Wirta was again refused entry with the same advice that he had been given by the border authority on August 27, namely to apply for a temporary residency permit (“TRP”) or criminal rehabilitation from a Canadian consulate or embassy outside of Canada before re-attempting to enter Canada.

[16] Mr. Wirta deposes that on receiving his third refusal he asked Ms. Wirta if she would return to the United States with him so they could work together towards his Canadian residency. He says he made it clear that he did not want the family to be split and that he did not want the children to continue with her to re-enter Canada without him. He says she insisted the children remain with her in Ottawa because school was starting in a week.

[17] Her evidence is this was a disappointment to the entire family, but that she regarded it as a temporary setback until Mr. Wirta could get the TRP. In her mind, the original plan was still in effect, only delayed. She says she suggested her husband find a job and stay in New York near the border while they waited to get the TRP paperwork processed. She said she would bring the children down to see him regularly. Mr. Wirta denies this.

[18] It is difficult to resolve factual disputes on the record without oral testimony or cross-examination. However, on balance I prefer Ms. Wirta’s version of these events. I accept that with mutual disappointment at the turn of events she and the children did re-enter Canada that day. There really was no other practical option. They had nowhere else to live, she had a job in Ottawa and the children were starting the new school year in a few days. I find that Mr. Wirta did not want to be apart from his family but that in the circumstances, he did not actually oppose the children’s re-entry to Canada.

[19] After the third denial, Mr. Wirta drove out to Sacramento to live with a cousin. Ms. Wirta did follow up with the TRP process, found out what documents were needed and let Mr. Wirta know. He worked on it too. He flew to Seattle in order to obtain extensive documentation that was required and faxed it all to her on September 25. She says he completed a two-page application form and sent it to her on or about September 30, however it needed corrections, which she asked him to make. She says Mr. Wirta did not make the corrections and the TRP application was never filed.

[20] During this same time frame, Mr. Wirta had made demands of the mother that she return the children to the United States, as evidenced by written communications on September 11, 13, and 16, 2015. These were along the lines of ‘the move did not work; bring my family back to the States’.

[21] When Ms. Wirta consulted her uncle after the first denial of entry on August 27, his recommendation was to apply for a TRP. Mr. Wirta submits that Ms. Wirta ought to have consulted him earlier. He relies on her failure to have done so as evidence of her male fides. So doing would have been helpful, but not doing so does not establish that she was acting to deceive her husband.

[22] Mr. Wirta relies on two other letters in support of his allegation that he was “set up”. Ms. Wirta had undertaken the immigration process for the family but he submits she failed to take obvious and necessary steps to address his criminal record. In this regard he relies on an email to her (copied to him) from her stepfather written on September 16, 2015, stating:

I don’t [know] why addressing Greg’s possible immigration issues wasn’t done, or at least in the works, as soon as you learned that you were going to transfer to Ottawa. … It is common knowledge that even DUIs can prevent people from entering Canada from the US. I assume having the Canadian government allow Greg to immigrate and unite with you and the kids is important enough to do things properly and, as I’ve said, you really must hire an immigration lawyer in Canada for this.

[23] Mr. Wirta submits this letter shows that Ms. Wirta did not actively or in a timely way address the immigration issues raised by his criminal record. His conclusion is that she never intended to because she did not want him to be able to enter Canada. I disagree with his conclusion. This is not her letter. It does not express her knowledge or intent. The views expressed in it by her stepfather cannot, without more, simply be attributed to Ms. Wirta. The information she provided Mr. Wirta before his arrival at the border and the efforts she made after August 27, as set out above, persuade me that she had not formed the intention he alleges.

[24] Mr. Wirta also relies on a letter sent to Ms. Wirta dated July 31, 2015 stating that he required a medical examination as part of his application to immigrate. Mr. Wirta alleges she intentionally failed to pass this information on to him. The letter was addressed to the couple’s former address in Washington State. Ms. Wirta was already in Canada when it would have arrived there. The letter also indicates it was emailed to her. Her evidence was that the email address was one she did not often use and in fact she did not see this email until the end of the summer. She also provided detailed testimony to the effect that Mr. Wirta had had the requisite medical examination and that she understood the clinic would have submitted the form directly.

[25] I was not persuaded by the evidence before me in relation to this letter that Ms. Wirta was intentionally keeping information from her husband with a view to keeping him from entering Canada. In fact, it does not appear that the denial of entry had anything to do with a medical examination requirement.

[26] Mr. Wirta also points to events after the children were in Ontario in support of his conclusion that the mother intentionally ignored the immigration issues created by his criminal record, lulled him into a sense of security and, when she was safely in Canada with the children, announced her intention to divorce him.

[27] On October 3, 2015 Ms. Wirta wrote him, “At this point Greg- I think it’s best if we do start talking about separation and what that looks like for our family”. The next day she referred to their relationship as “dysfunctional”. His response was to say ‘“I’m telling you we aren’t dysfunctional. I’m telling you this HORRIBLE situation not caused by us is dysfunctional.” He pleaded with her to reconsider but she was adamant.

[28] Ms. Wirta applied for divorce and custody in Ontario on October 13, 2015. She also withdrew her sponsorship application for Mr. Wirta on October 23.

[29] In Mr. Wirta’s submission these facts combined with her alleged failure to properly address his immigration issues in advance of his arrival at the border crossing establish Ms. Wirta’s intention to deceive him into consenting to relocate the children to Canada.

[30] There are other facts. On September 17, Mr. Wirta had texted his wife: “If I don’t hear from you tonight. You have made the choice for a divorce. No other way.”

[31] Mr. Wirta also made recurring accusations of misconduct against her during this time. She filed several electronic communications between them in which he expressed frustration with her delay in responding to him, suggested she was too busy for him but was busy with someone else, questioned why she would shower at bedtime, accused her of being totally different, cockier, culminating in calling her “a whore” and telling her to get “the cock out of her mouth.”

[32] Up until these last accusations she had been patient in her responses to him and had expressed her desire to be together and to have this enforced separation behind them. When she advised him she wanted to separate, she also suggested he could have the children with him for as much as half the time, including their holiday time. That proposal is not consistent with a mother who had engineered the move in order to separate the father from his children.

[33] On October 9, Mr. Wirta told his wife that he had filed for divorce in Seattle. He had not done so, but nonetheless, this information prompted her to act quickly in issuing her Ontario court application. (At the time, the Ontario court did not have jurisdiction to deal with the request for divorce because neither spouse had resided here for the required twelve months preceding the date of issuance. For this reason, at the outset of this hearing on April 14, 2016, I struck the claims for the divorce and corollary relief under the Divorce Act from the Ontario application.)

[34] Now Mr. Wirta chooses to allege a conspiracy against him, but his demands, threats and egregious accusations undeniably contributed to the ultimate break. I find that the parties’ mutual inability to handle the situation that arose when Mr. Wirta was denied entry to Canada placed more stress on their relationship than it could withstand.

[35] Undoubtedly Mr. Wirta’s text dated October 4 was written quickly but nonetheless I find it accurate where he describes the situation as “not caused by us”.

[36] Mr. Wirta was personally served with the Ontario application on October 15, but did not respond, although he does say he was attempting to retain counsel. The case proceeded by uncontested trial on December 2, 2015. Custody was awarded to the mother with reasonable access to the father at her discretion. This order was served on Mr. Wirta on January 8, 2016. Mr. Wirta issued the Hague application on February 4, 2016, together with his motion to set aside the December 2 order.

[37] At the commencement of this hearing, the December 2 order was set aside on consent.

Relevant provisions of the Hague Convention

[38] The relevant provisions of the Hague Convention are Articles 3, 5, 12 and 13:

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.

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.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the 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.

Article 13

Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its 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.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

Analysis

[39] A removal or retention of a child is wrongful pursuant to Article 3 of the Hague Convention where the child is removed or retained from his or her habitual residence in breach of someone’s custody rights where that person was actually exercising those rights at the time of the removal or retention. There is no doubt that the parents shared joint custody of their children or that the father was exercising his rights of joint custody at the relevant time. There is, however, an issue as to the habitual residence of the children. The parties agree that the children had been habitually resident in Washington State. While the father maintains that Washington State remains the children’s habitual residence, the mother submits that the children’s habitual residence changed on August 27, 2015 when they entered Canada with their parents’ consent.

[40] The determination of habitual residence is a question of fact to be decided based on all of the circumstances. Habitual residence is the place the person resides for an appreciable period of time with a “settled intention”. The “settled intention” is an intent to stay in a place temporarily or permanently for a particular purpose, such as employment. A child’s habitual residence is tied to that of the child’s custodian. (See Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.), , and Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298.)

[41] In this case, since the parties shared legal decision-making custodial rights for their children, the court must determine the shared intentions of the parents with respect to the relocation to Ontario. The question is: immediately before the physical move, were the parties jointly intending to move to Ottawa with the children and to stay there, temporarily or permanently, for a particular purpose, which could be employment or family? If so, does the evidence establish that the children have in fact settled into the new location to the extent that they have acquired a new habitual residence? (See Csoke v. Fustos, 2013 ONSC 2417, at para. 260).

[42] Where the parties’ evidence on their intentions is contradictory, the court is instructed not to take their representations at face value, but rather to determine based on all the evidence, including their actions, whether the parents had already agreed to change the children’s habitual residence (Ellis, at para. 17).

[43] The actions of the parties prior to the physical move clearly reveal a joint endeavour to relocate, with the children, to Ottawa, on an indefinite basis, for the purpose of Ms. Wirta’s employment. The parties discussed Ms. Wirta’s possible employment transfer and, after discussing it, Ms. Wirta applied for the transfer. When she was successful in obtaining the transfer, the parties jointly leased a house in Ottawa. They undertook the process of immigrating to Canada: Ms. Wirta filled out the paperwork and Mr. Wirta signed various documents and underwent a medical examination. They shipped their household furnishings and belongings from Washington State to Ottawa. I conclude that the parties carried out a joint plan to relocate to Ottawa with the children.

[44] Mr. Wirta says that after he was initially denied entry to Canada, Ms. Wirta acted unilaterally in taking the children to Ottawa. I find he did consent to the children entering Canada on August 27. I note that in his first affidavit he does not say he objected to the entry on that date. In a subsequent affidavit he says he reluctantly allowed them to cross the border into Canada under the assumption that he would be joining them shortly. The decision Mr. Wirta made was practical and in the interests of his children. It made sense for them to continue on to Ottawa and start settling in to their new home before school started.

[45] Mr. Wirta also deposed that had he known then what actually ended up happening, he would not have agreed to allow them to enter Canada. Be that as it may, I also find, in accordance with the exhibit attached to his affidavit, that when he agreed to the children’s entry to Canada he had already been advised by the border authority of the requirement to obtain a TRP or criminal rehabilitation from a Canadian consulate or embassy outside of Canada.

[46] There is no doubt that the father agreed to the family moving to Ontario. He intended to enter Canada with the children and to join his wife in Ottawa. I find the parents had a shared intention to move from Washington State and to take up residence in Ottawa together with their children.

[47] Therefore, the removal of the children from the United States on August 27, 2015 was not “wrongful” as it was in furtherance of the parties’ joint settled intention to change the children’s habitual residence to Ottawa, Ontario.

[48] Further, I find that the parents both continued to pursue the joint plan to move to Ottawa after the children had already entered Canada. While they were doing so, the children were settling into their new home and attending a new school with new classmates. The case law suggests that when a child has become acclimatized to his or her new surroundings, he or she will have acquired a new habitual residence: Christodoulou v. Christodoulou, 2009 ONSC 5700. There is no set time requirement to establish a new habitual residence; it has been suggested that the time necessary to do so may be as little as one day: S. (A.E.) v. W. (A.M.), 2012 ABQB 753, 549 A.R. 309, at para. 76. In Csoke, the court found that the child had established a new habitual residence in Ontario within 3 days of arriving there with her parents. I find that the children had established a new habitual residence in Canada with the consent of both parents before the joint plan to relocate to Ottawa was abandoned.

[49] I was referred to two cases addressing situations in which a parent changed his mind about whether he consented to the children living in a new country after the family had moved there. First, in Csoke, supra, the parties travelled with their daughter from Hungary to Canada. The father claimed that the trip was a visit only; the mother stated that the parties had agreed to move to Canada and claim refugee status. Days after they arrived, the father was arrested and charged with assault against the mother. The parties separated and the father was eventually deported back to Hungary. There, he began a Hague Convention application alleging that the child was being wrongfully retained in Canada. The court found that the parties made the joint decision to immigrate to Canada and jointly intended to reside in Hamilton with the child. The court rejected the father’s argument that his consent to the child being in Canada was contingent on the parties being together as a couple. At para. 307, the court deemed this to be a “personal” factor, which was not relevant in determining the child’s habitual residence:

[307] I adopt the reasoning of the Quebec Court of Appeal in E.H. supra. The fact that Lazslo may have relied on assurances from Anita that in Canada they could continue their marriage and his agreement to change Dominika’s habitual residence on that basis, is personal to him and not a consideration when the court is determining the reality of the child. Lazslo may regret his decision to immigrate to Canada, however, it does not change the child’s reality. The parties had formed the intention of re-locating their residence from Hungary to Ontario, I find. When Lazslo subsequently changed his mind, as I find he did, Dominika was already in Hamilton settling into a new life there.

[50] Moreover, the court in Csoke also rejected the father’s submission that his arrest and deportation were engineered by the mother in a plot to ensure she could live in Canada with the child while ridding him from their lives. At para. 323:

[323] Lazslo has not presented persuasive evidence to allow me to make such a finding. I find that these events were not within Anita’s control. She could make an allegation of an assault; however, she would have had no control over the steps taken by the police, the Crown Attorney, or the government of Canada with respect to Lazslo’s deportation.

[51] Second, in deHaan v. Gracia, 2004 ABQB 74, 351 A.R. 354, after commencing divorce proceedings in France, the parties came to a joint settled intention to relocate their family to Canada in an attempt at reconciliation and an effort at starting a new life. The mother and children moved to Canada with the children, and the father followed soon after. Shortly after arriving, the father determined that a reconciliation was not possible. He returned to France and several months later began a Hague Convention application. In rejecting the application, the court held, at paras. 45-46:

[45] The removal of the children from France to Canada cannot be considered wrongful since it was not in breach of the Defendant’s rights of custody, rather it was in furtherance of the parties’ joint decision and intention to move to Canada.

[46] The evidence establishes, and the Defendant admits, that he consented to the move by the children from France to Canada. The Defendant cannot later change his mind and revoke his consent if he does not subsequently like the result of his decision.

[52] I accept that Mr. Wirta would not have consented to move the children away from Washington State and to have them establish habitual residence in Canada with their mother had he known the marriage would break down and his sponsorship would be withdrawn before he would be able to enter into Canada. I also accept that had he known he would be denied entry at the border and would have to apply for a TRP from outside of Canada, he might have decided that the family should remain in Washington until he had the TRP. However, the evidence establishes that he did consent to the children entering Canada and living in Canada. He cannot now revoke his consent because events did not unfold how he imagined they would.

[53] The case law establishes that consent can be vitiated in circumstances including deceit, fraud or misrepresentation. In Matthews v. Matthews, 2007 BCSC 1825, 76 B.C.L.R. (4th) 176, the Canadian mother and children returned to British Columbia from Australia, where the family had been living. The father stayed behind to pack and save money, with the intention to follow the rest of the family a few months later in April. He arrived in Canada on April 12. The next day, the mother withdrew her sponsorship of his application for permanent resident status. He was required to leave the country, and did so on May 9. The court identified the issue as to validity of his consent to the removal of the children from Australia at para. 15:

[15] The next issue is whether, and if so under what circumstances, outward or ostensible consent may be vitiated or held to be invalid. It must be open for a party who has given outward consent to establish that the consent was not valid. If it were otherwise the objects of the Convention could be undermined. If it is alleged that there are circumstances that would vitiate a consent outwardly given, it is for the party making that claim to prove it on a civil standard. It is not necessary to resolve the matter at hand to define all the possible grounds on which consent might be vitiated. It is enough to observe that deceit, fraud or a fundamental misrepresentation in relation to a material aspect of the consent are among them. The common element in all of these is dishonesty. Not any dishonesty will be sufficient to vitiate a consent; rather, it must be dishonesty going to the root of the consent.

[54] The court found as a fact that prior to leaving Australia the mother had already decided she no longer wanted to reside with the father and had also decided not to tell him. The court found she deceived him as to her intentions upon arriving in Canada and that when he agreed to allow his children to leave Australia he did not realize that it meant that when he came to Canada he would not be living with them or their mother.

[55] Mr. Wirta’s allegations do not establish the deceit, fraud or fundamental misrepresentation required to vitiate his consent. Nor is it reasonable for him to in effect take the position that Ms. Wirta was in full control of whether he would be allowed entry to Canada. Either party could have taken steps to verify Mr. Wirta’s eligibility to immigrate into Canada prior to the decision to relocate being made and prior to arriving at the border crossing. Mr. Wirta says he relied on Ms. Wirta to ensure he would be allowed entry, but it was not her decision to make. She was not in control of the outcome.

[56] Mr. Wirta submits that even if the removal of the children was not wrongful, Ms. Wirta must still prove by cogent and unequivocal evidence that he consented to or acquiesced in their retention in Canada: Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 (C.A.), . He submits she has not done so. I disagree with his premise. The onus to establish subsequent consent to or acquiescence in a retention arises under Article 13 when an exception is sought to the mandatory return required by Article 12. The mandatory return is in relation to a wrongful removal or wrongful retention. Had I found the retention wrongful, the onus would have shifted to Ms. Wirta. I did not make that finding. Rather I have found that the parents’ joint decision to establish the children’s habitual residence in Canada continued until that habitual residence had in fact been established, such that the retention in Ottawa was not wrongful.

Conclusion

[57] There was no wrongful removal of the children from the State of Washington, which was their former habitual residence. Mr. Wirta left Washington with the children in furtherance of the parents’ joint decision to move the children to Ottawa, Ontario. When the children left Washington with Mr. Wirta, Ms. Wirta had already travelled to Ontario and was already residing there. By the time the children arrived at the border crossing on August 27, their habitual residence in Washington had already been abandoned by joint decision of their parents.

[58] Mr. Wirta did consent to the children entering Canada on August 27. When he gave that consent he had already been denied entry to Canada and had already been advised by the border authority of the requirement to obtain a temporary resident permit or criminal rehabilitation from a Canadian consulate or embassy outside Canada before re-attempting to enter Canada. At the time his thinking was that he would be able to get a TRP within a few months. The fact that this did not happen does not change the joint decision to move the children’s habitual residence to Canada to a unilateral decision by Ms. Wirta.

[59] Mr. Wirta did demonstrate three occasions when he asked for the children to be returned to the United States. These were made while he himself was still working towards joining his family in Ottawa in accordance with the parties’ mutual plan. By the time they were made the children’s habitual residence had been established in Canada.

[60] Once the children’s habitual residence had been established in Canada, Mr. Wirta could not on his own change it back.

[61] Mr. Wirta presents himself as a victim of the mother’s deception. The burden of proof that the mother obtained the father’s consent to move to Canada by fraud or misrepresentation is upon the father on a balance of probabilities. He has not discharged that burden.

[62] For these reasons the Hague application is dismissed.

C.L.R.A. s. 25

[63] The Master did not specify in his order that the issue whether this court should decline jurisdiction under section 25 of the Children’s Law Reform Act was to be argued at the same time as the Hague application. Ms. Wirta’s counsel had not come prepared for that issue. Accordingly, the applicant may, if so advised, secure a motion date for the return of his motion asking the Ontario court to decline to exercise its jurisdiction in respect of the custody and access arrangements for these children.

Costs

[64] Should counsel be unable to agree on costs I will receive written submissions from them. These should not exceed three pages in length plus attachments of bills of costs and any applicable offers to settle. The respondent should deliver her submissions by June 24, and the applicant by July 8, 2016.

Madam Justice J. Mackinnon Date: June 9, 2016

[1] Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35, Schedule to s. 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.