Court File and Parties

COURT FILE NO.: 17-676-1

DATE: 2019/08/13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nina Lynn Nowlan, Applicant

AND:

Bryce Nowlan, Respondent

BEFORE: Honourable Madame Justice M. Fraser

COUNSEL: Any Mayor, for the Applicant

Allan Hirsch, for the Respondent

HEARD: July 12, 2019

ENDORSEMENT

[1] The Applicant (“mother”) seeks an order requiring that the child, A.E.N., born in 2015 (“the child”), be returned to her habitual place of residence, namely, the State of Virginia in the United States. The mother alleges that the child, who has been residing with the Respondent (“father”) in Ontario since April 1, 2017, is being retained in the Province of Ontario by the father in breach of her custodial rights and that such retention constitutes a wrongful retention of the child within the meaning of the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ["the Hague Convention"], Schedule to s. 46 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 ["CLRA"].

[2] The father does not dispute that the child’s habitual residence was in the State of Virginia and that her retention in Ontario since July 1, 2017 is technically wrongful. His defence, under Article 12 of the Hague Convention is that the mother brought the application after the expiration of the period of one year from the date of the wrongful retention and that the child has now settled into her environment such that this Court ought to refuse to order the return of the child. The mother concedes that the present application was commenced after the expiration of the period of one year from the date of the wrongful removal or retention.

Background:

[3] The mother and father met through an on-line dating site in September, 2014. The father is a corporal with the Canadian Armed Forces and is posted in Petawawa, Ontario. The mother is a veteran of the United States military who was honourably discharged in July, 2013. The mother states that her discharge from the military arose due to her suffering from post-traumatic stress disorder arising from her having been sexually assaulted by another American soldier. She was living in Virginia when the parties met. At the time, the mother was residing with her own mother (the “maternal grandmother”).

[4] The parties married in Virginia on December 31, 2014.

[5] The mother became pregnant with the child. At this time the mother attempted to move to reside with the father in Ontario but was not permitted entry into Canada because she had a conviction for impaired driving. Therefore, the mother returned to the maternal grandmother’s home in Virginia. The child was born in 2015.

[6] The father took a parental leave and moved to Virginia where he lived with them at the maternal grandmother’s home until August 2016. He maintains that during this time it became apparent that the mother had a serious alcohol problem. He claims she was unable to control her drinking, often becoming loud and abusive to family, friends and strangers. He relates that on one occasion the mother simply disappeared and stayed with friends for a week while apparently drinking heavily. Her substance abuse, he claims, strained the mother’s relationships with others, including her relationship with the maternal grandmother.

[7] At the end of his parental leave, the father returned to Ontario. The mother moved with the child to Watertown, New York in order to facilitate the father’s relationship with the child. In this respect, the father was able to continue to visit on weekends. According to the government records the father has produced which shows the number of times he crossed the border at Watertown, he visited the mother and the child frequently, if not weekly, between August 26 and November 24, 2016.

[8] In November 2016, the relationship between the mother and father ended. The mother suggests that there was an altercation between them and that the father physically assaulted her. The father denies this and maintains that the separation arose from his discovery that the mother was carrying on an affair with another man.

[9] On December 10, 2016, the father went to Watertown to visit the child. He claims that the mother was intoxicated for most of the time he was there and that she argued with him about leaving and tried to keep his passport from him. Her neighbours called the police as a result of the arguing. The police arrived and required the mother to turn over the father’s passport to him.

[10] On January 4, 2017, the father again went to Watertown to visit the child. He claims that the mother was extremely intoxicated yet again and that an argument ensued which became physical. He claims the mother shoved him and punched him, causing a nose bleed. He claims that the mother pushed him through a baby gate and that he threw it back at her, hitting her in the leg. He states that he left immediately afterward.

[11] The mother attempted to report the incident to the Watertown police the next day. However, the police and domestic violence advocate, according to the father, would not take a statement from her because she appeared too intoxicated. The mother later advised the police that she did not wish to pursue charges against the father. The police report generated by this incident confirm this history.

[12] The child remained in the mother’s care.

[13] It was during this timeframe that New York Child Protection Services opened a file on the mother. However, the file was closed when the mother moved back to live with the maternal grandmother in Virginia in or around February, 2017. According to a report later made by the maternal grandmother to Child Protection Services in Virginia (“CPS Virginia”), the maternal grandmother went to New York in February 2017 to pick up the mother and the child due to the mother “being heavily intoxicated and living in a filthy environment.”

[14] CPS Virginia became involved with the mother shortly after she was arrested for public drunkenness on or about March 17, 2017. She was released back to the maternal grandmother’s home. However, when she then tried to leave with the child, the maternal grandmother became concerned about the state of her mental health and contacted the police. CPS Virginia intervened and required that the mother leave the child in the care of the maternal grandmother. Contact between the mother and the child was temporarily suspended.

[15] The father maintains that the mother phoned him in late March, 2017 pleading with him to take the child into his care rather than the child staying with the maternal grandmother. She advised him that her mother was “out of control” and that she needed a few months until “all this shit gets settled.” The father agreed and maintains he did so because he had serious concerns about the child’s safety in the mother’s care.

[16] On March 29, 2017, the father was contacted by a social worker from CPS Virginia and ultimately, he was asked to participate in a planning meeting scheduled for March 30, 2017.

[17] Six people participated in the planning meeting which took place: two social workers, an agency “facilitator”, the mother, the maternal grandmother, the maternal aunt, and the father who participated by telephone. The meeting culminated in an agreement that the father would go to Virginia and bring the child back to Ontario to reside with him while the mother dealt with her substance abuse and mental health issues. The plan required that the mother seek assistance for her substance abuse and mental health issues through Veteran’s Affairs, that she undergo a psychological evaluation, that she submit to substance abuse screening and take medications as prescribed by medical professionals. The father maintains there was no “end date” with respect to the agreement and the typewritten plan itself does not specify an “end date.”

[18] The father went to Virginia on April 1, 2017 and picked up the child and returned to Petawawa, Ontario with her. She has been in his exclusive care ever since.

[19] The father claims that the mother was to provide clean drug screening prior to setting up a psychological assessment and CPS Virginia wished the mother to release her health care records and attend AA meetings. His information was to the effect that the mother was non-compliant, aggressive and manipulative and that it was due to her non-cooperativeness that CPS Virginia closed its file on or about June 16, 2017.

[20] Correspondence from CPS Virginia to the mother dated June 16, 2017 states that “We were unable to receive your cooperation in assessing your family’s needs, therefore, we will be closing your file.”

[21] The assessment attached to the correspondence dated June 16, 2017 states:

The mother….was not cooperative with the department and appeared to be very manipulative.… Ms. Nowlan did not follow through that was requested by the department with any services to assist with her mental health, substance abuse and parenting skills to prevent further abuse of her child....

After further assessing the situation, the risk level is Very High. The department assisted with helping the mother with services but at this time the mother was uncooperative and did not comply with any request by the department. This case was not recommended for on-going services due to the child is now living in Canada with the father and Ms. Nowlan’s uncooperativeness with CPS….

The department requested multiple times for verification on services with Ms. Nowlan, and at this time the department has never received any information that the mother verbally advised what she was doing. The child is currently residing with her father in Canada.

In conclusion the department attempted multiple times to meet with the mother to provide services for her. The department requested funding’s from FAPT that was approved, and the mother still did not cooperate. The department also found that the mother had CPS history in New York, and did not follow through with services recommended, or services through the VA hospital in New York for mental health and substance abuse.

At this time the department will be closing this case, due to Ms. Nowlan’s uncooperativeness and the father, Bryce Nowlan has filed for custody of the child in Canada.

[22] The mother asked the father to return the child to her at some point in the month of July, 2017. The father refused to do so.

[23] The father believes that the mother has still not taken the steps required of her and that there has been no significant change regarding her mental health.

[24] The mother, on the other hand, asserts that she has undertaken significant efforts to address and comply with the recommendations of the CPS Virginia. Her assertions lack documentary corroboration or particularity respecting the dates and/or level of participation, particularly her claim that she has complied with the recommendations of the CPS Virginia, absent confirmation from that agency to that effect.

[25] At best, the documentation provided by the mother to support her claim that she had complied with the recommendations of the CPS Virginia is wanting. For instance:

a. The mother claims to have enrolled in a “Mindfulness-Based Stress Reduction Group for Women” offered by Veterans Affairs, the correspondence provided to support this would suggest that she only engaged with this program in January 2019;

b. She advises that she has attended for psychological testing through Veterans Affairs. Confirmation of this has not been provided so it is unknown when this took place and what the results were.

c. She advises she has attended AA meetings. Again, no independent confirmation has been given for this nor have any dates have been provided as to when she joined AA.

d. She advises she attended for counselling. A short two paragraph report dated January 3, 2019 has been provided confirming this. It indicates that the mother has received care from the Staunton Community Based Outpatient clinic since May, 2016 and states that her psychiatric history includes diagnoses of post-traumatic stress disorder, depression, as well as cannabis and alcohol abuse in early remission. Her prognosis is stated to be “fair with continued adherence to treatment”;

e. The mother also provides a letter obtained from an orthopedic surgeon dated January 16, 2019. While expressing support for the mother, he states the following which would suggest that there remain ongoing issues: “Not being a psychiatrist but an orthopaedic surgeon, I know this young woman is suffering from depression;” and

f. The mother enrolled in a six-week parenting class entitled “Active Parenting” but no confirmation has been provided of her successful attendance and this only happened on April 1, 2019.

Court Proceedings:

[26] The father started an application in the Superior Court of Ontario for divorce, sole custody of the child, and child support on November 30, 2017.

[27] The mother, in turn, commenced her own petition for custody in Virginia on January 24, 2018. A guardian ad litem, Michael Araj, was appointed by that court to serve the best interest of the child on February 8, 2018. On May 11, 2018, an order was made by the Augusta County Juvenile and Domestic Relations District Court in Virginia that the child had been wrongfully retained by the father within the meaning of Article 3 of the Hague Convention.

[28] The Ontario application was stayed on May 17, 2019 upon receipt of a Notice delivered by the Central Authority for Ontario under Article 16 of the Hague Convention, indicating that the mother was intending to commence a Hague application.

[29] Mr. Araj brought a motion before the Virginia court asking that it decline to exercise its territorial jurisdiction so that the custody and access claims could proceed in Ontario on the basis that Ontario was the forum conveniens. This motion was adjourned by that court in Virginia on September 6, 2018 and again on December 7, 2018 at the request of the mother whose counsel advised that the mother had commenced a Hague application in Ontario.

[30] The mother commenced the present application on March 5, 2019. She concedes that she did not file her application until more than a year had elapsed since the date when she claims the wrongful retention had occurred.

[31] The child is currently four years, seven months old. Since April 1, 2017 (a span of two years, four months), she has resided exclusively with her father in Petawawa, Ontario. She has her own room. When her father is working, she attends a private daycare. The father has been attending to her daily needs: making meals, organizing or hosting play dates with other children, reading to her every night, playing games, watching movies, bathing her. He involves her in outdoor activities, including skating and sliding in the winter, camping and walking nature trails in the summer, and taking daily evening walks with their dog. The father has brought her to spend time with his family in New Brunswick. The paternal relatives maintain contact with the child via FaceTime.

[32] An affidavit sworn by a friend and colleague of the father, Darcy Gillam, attests to the child’s loving relationship with her father, their participation in the community and her happy, content demeanor. Ms. Gillam’s evidence attests to the fact that the father is providing the child with a supportive, stable environment.

[33] The child’s full-time daycare provider for the past year, Kristen Larsen, also attests to the fact that the father has been a “doting” father to the child. She reports that he has been a consistent and stable parent to the child and that she has watched the positive strides the child has made in her development, particularly her language skills over the past year. She also provides the child with an opportunity to meet other children in the community and engage in a variety of activities and learning opportunities on a daily basis. The child is scheduled to begin school in September, 2019.

Issues:

[34] The issue for determination in this application is whether the child has “now settled into her environment” under Article 12 of the Hague Convention such that the request to return the child to the State of Virginia should be refused.

Analysis:

[35] Any analysis of the Hague Convention requires consideration of the instrument’s core object: to secure the prompt return of abducted children to their country of habitual residence.

[36] The objects of the Hague Convention are clearly set out in Article 1:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

[37] The preamble to the Hague Convention explains that the Contracting States are "[f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody". As stated by La Forest J. in Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551: “The underlying purpose of the Convention, as set forth in its preamble, is to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.”

[38] Article 12 of the Hague Convention sets out the basic obligation to return a child who has been wrongfully removed or retained, in breach of rights of custody as provided in Article 3. Article 12 also recognizes some limited and precise circumstances in which an exception to the general obligation to secure the prompt return of children is made in the interests of a particular child:

Where a child is wrongfully retained 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. [Emphasis added.]

[39] The policy rationale underpinning Article 12 was helpfully explained as follows by Levine J.A. in Kubera v. Kubera, 2010 BCCA 118, 317 D.L.R. (4th) 307 (B.C. C.A.) at para. 31:

Article 12 describes the scope and duration of the defining obligation of the Convention: the commitment to promptly return a child who has been wrongfully removed or retained to the country of habitual residence. It is through this obligation of swift mandatory repatriation that the Convention pursues its principal object: to protect children from the harmful effects of child abduction by deterring and, where appropriate, remedying their wrongful removal or retention.

The Convention operates on a basic presumption that a child's best interests, and the rights of custody and access that relate to them, should be determined by the courts in the country where he or she is habitually resident: W. (V.) v. S. (D.), 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108 (S.C.C.) at para. 36. From this one principle arises each of the interrelated objectives of the Convention, all of which are directed at protecting the interests of children generally. These include rapid return of the child, restoration of the status quo, deterrence of international child abduction and deference, with respect to the determination of a child's best interests, to the courts of the place of habitual residence: A. (J.E.) v. M. (C.L.), 2002 NSCA 127, 220 D.L.R. (4th) 577 (N.S. C.A.) at para. 31.

As a result, the Convention prohibits a court from approaching the question of a child's return as though it were a custody hearing on the merits, where the test applied is "the best interests of the child". Under the Convention, the interests of the individual child are only considered in the most limited and exceptional of circumstances: Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551 (S.C.C.), at 578

Those circumstances are carefully defined by the Convention itself. Where an exception is provided, it expresses a careful compromise between the effectiveness needed to deter international abduction and protect the interests of children generally, and the flexibility necessary to protect the welfare of the particular child: W. (V.) at para. 37.

The “Now Settled” Exception:

[40] The “now settled” exception provides that where proceedings are commenced after one year from the date of wrongful removal or retention, the judicial or administrative authority shall order the return of the child unless it is demonstrated that the child is now settled in its new environment.

[41] This exception is a recognition that the interests of a child in not having his or her life disrupted once he or she has settled down in a new environment may, in a certain case, override the otherwise compelling need to protect all children from abduction. It acknowledges that after one year, the immediate return envisaged by the Hague Convention is no longer possible. As such, those policies that are presumed to justify mandatory repatriation in all cases prior to the expiry of the one year period will, with the passage of time, tend to weaken. Those that require consideration of the welfare and interests of the particular child tend to strengthen (See: Kubera at para. 38).

As noted above, the factual inquiry seeks to determine the actual circumstances of the child in terms of the disruptive effect of ordering his or her return. The exception reflects a compromise between an indefinite extension of the obligation to return the child, and a recognition that the justifications for that obligation do not persist indefinitely. Beyond one year, the interests of a particular child in not being uprooted may begin to outweigh the generalized objectives of the Convention summarized in A. (J.E.) (at para. 68). The objective of securing prompt return has been seriously undercut; restoring the status quo may be impossible; it can no longer be presumed that the country of origin is the best forum to determine the issue of custody; and, finally, general deterrence, while much less prone to the passage of time, must also eventually yield to the welfare interests of the particular child. As stated by Baroness Hale of Richmond, writing for the House of Lords in M., Re, one child "should not be made to suffer for the sake of general deterrence of the evil of child abduction world wide" (See: Kubera at para. 66).

[42] Therefore, the court, when applying the exception must determine whether in the actual circumstances of the particular case, the balance between these considerations no longer supports what is otherwise a mandatory obligation to return the child.

[43] As such, the application of the “now settled” exception involves striking a balance between interpreting the exception too broadly which could undermine the effectiveness of the Hague Convention, and interpreting it too narrowly, which could rob it of any practical effect. As stated in A. (J.E.) v. M. (C.L.) 2002 NSCA 127 (paras. 67-68):

[T]he settled exception ought to be approached not simply by examining the child's present circumstances in the new environment, although that is an important part of the inquiry. In addition, the child's present circumstances need to be assessed in light of the underlying objectives of the Convention and in particular how ordering return of the child is likely to further those objectives.

It will be helpful, therefore, to consider how the key objectives of the Convention relate to the specific circumstances of the child whose return is sought. To repeat, the relevant objectives include first, general deterrence of international child abduction by parents; second, prompt return of the child facilitated by precluding a full inquiry into the "best interests" of the child in the state to which the abductor has fled with the child; third, restoration of the status quo; and, fourth, entrusting to the courts of the place of habitual residence the ultimate determination of what the best interests of the child require.

[44] This approach to the interpretation of the phrase “now settled” requires, therefore, both a factual assessment of the child’s integration in the new environment, and a purposive and contextual analysis of the policy of the Hague Convention as it relates to the specific circumstances of the child (see: Kubera at para. 43; AMRI v. KER, 2011 ONCA 417 at para. 103).

[45] Further, the factual inquiry required to determine whether a child is “settled” under Article 12 includes a physical element, relating to being established in a community, and an emotional element, relating to security and stability. Assessing the stability of the child’s position involves examining “the child’s future prospects as well as his or her current circumstances” (see: A. (J.E.) v. M. (C.L.) 2002 NSCA 127 at para. 82).

[46] To determine if a child is “now settled” in its new environment, a “child-centric” factual inquiry must be undertaken to determine the child’s actual circumstances. It is to those circumstances that the policies and objectives of the Hague Convention, must be applied (see: Kubera at para. 48).

Is the child “now settled” in her new environment such that, pursuant to Article 12 of the Hague Convention, this Court should not return her to the State of Virginia, United States?

[47] The child is still very young. The mother argues that even though the child has spent the second half of her life in Canada, the child should not be considered as settled into or strongly connected to her community in Petawawa. The mother’s takes the position that a return to Virginia would pose no disruption to her given she is not yet enrolled in school. She takes the position that the child is still at the age where children do not form long-lasting, distinct friendships with their peers, and thus the child would experience minimal issue with separating from any of the casual acquaintances she has developed during her wrongful retention in Ontario.

[48] In a case involving a young child, it is not surprisingly more difficult to demonstrate that the child has become settled in their environment based solely or primarily on the physical elements of settlement. Children at a younger age will not have integrated with members in a community in the manner an older child would through school and extracurricular activities.

[49] However, that stated, the inquiry then, with a younger child, needs to employ a different focus in order to determine the degree of settlement. As stated in J.L. v. British Columbia (Director of the Child, Family and Community Service Act) 2010 BCSC 1234 (at para. 79):

I agree with the court in T.S. that a court should look more closely at the relationship a younger child has with his or her immediate family to determine the degree of settlement. As a child ages and becomes more involved in community and school activities, those ties to the community take on more importance in the consideration of the degree of settlement. What this means for a court considering an Article 12 situation is that the emotional element of settlement is more significant in the case of a younger child simply because the physical ties to the community will likely be minimal.

[50] The child has been residing exclusively with the father for the past two years. She attends a small daycare which allows for focused interaction with her caregiver. She is reported to be happy and meeting the expected milestones in her development.

[51] The greatest factor relevant in this case to the determination of whether the child has settled into her environment is the security and stability of the environment she now finds herself in with her father. This environment was not present in the child’s life when she was residing with the mother. The first years of the child’s life appear to have been visited with conflict and challenges owing to the mother’s relationship issues with the father and the maternal grandmother, and her struggles with mental health and substance abuse issues.

[52] While the father as an “abductor” should not be able to benefit from the fact that the past two years has resulted in the child becoming “attached” to him, when approaching the consideration of this issue of settlement from a child’s perspective, I conclude that the child is being provided with the security and stability she was missing in her earlier years. I conclude that the child has settled into her environment.

[53] There is little question that if the child is sent back to Virginia, where she has not been for two years, that this would cause disruption and potential emotional trauma to her.

[54] I also take into account the fact that any trauma suffered by the child when she was first dislocated and came to reside with the father was not caused by the father’s actions, but rather, it was caused by the mother’s circumstances, namely the conflict with the maternal grandmother and the mental health and substance abuse challenges with which the mother was grappling.

Application of purposive and contextual analysis:

[55] I propose to also consider the key objectives of the Hague Convention as they relate to the specific circumstances of this case.

Deterrence:

[56] The first objective I am to consider is the general deterrence of international child abduction. General deterrence of child abduction will, almost always, weigh in favour of the return of a child to the jurisdiction of habitual residence.

[57] In this case, deterrence is not a significant factor. While the father does not dispute that the child has been wrongfully retained by him, the circumstances of this case are not typical. In this instance, the father’s assistance in assuming the care of the child was sought out and based very much upon the mother’s inability to properly care for the child due to mental health and substance abuse issues.

[58] The parameters upon which the mother consented to the child residing in Ontario with the father were not at all clearly defined. She asserts that the documentation from Child Protection Services in Virginia which she attached as Exhibit “C” to her Affidavit sworn March 4, 2019 “clearly” indicate that the child was being placed with her father in Ontario on a temporary basis and “that all custody and access issues would need to be determined in Virginia.” Yet, the CPS documentation does not actually state this. The mother claims the agreement was time limited and the child was to be returned in July 2017. There is no corroborating documentation to substantiate that there was an expressed time limit. At best, there was an “understanding” that the child was to be cared for by the father while the mother addressed the issues which had arisen with both the maternal grandmother and Child Protection Services in Virginia.

[59] What is clear is that the mother began to ask for the return of the child sometime in July 2017. The father refused at that time based upon his understanding that the mother had not addressed the issues which were the basis for his having been asked to assume the care of the child, namely the mother’s mental health and substance abuse issues. He continued, legitimately it would seem, to have concerns that the mother had not sought out counselling and/or treatment for those issues. His unwillingness to return the child seemed to be supported by CPS Virginia which had very recently closed its file due to the mother’s non-cooperation with that agency and the mother’s apparent failure to take the steps it had asked of the mother.

[60] Therefore, this is not an instance where the abductor brought the child to another jurisdiction with the intention of undermining the objectives and operation of the Hague Convention. There was no attempt to deceive or thwart the judicial system of the child’s habitual residence. The father understood that the child was considered to be at risk in the care of her mother and agreed to take the child into his care, with the consent of both the mother and CPS Virginia.

[61] Further, consideration is often given in the deterrence analysis to the relative fault for the passage of time that may be assigned to the parties. However, I do not find that the father’s actions contributed to the delay in bringing the application for the return of the child. The application for the return of the child was commenced in May, 2019. The delay in bringing this application did not arise as a result of the father’s actions.

Prompt return of the child:

[62] The next objective to consider is the prompt return of children who have been wrongfully removed or retained. More than two years have passed between the wrongful removal and the hearing of the petition. The prompt return is no longer possible.

Return to the status quo:

[63] The third objective to consider is the return to the status quo. That is not possible in this case. The mother no longer resides with the maternal grandmother in Virginia. A more important consideration, however, is the fact that a return to the status quo which existed at the date the child was brought to Ontario is not possible because the status quo according to CPS Virginia gave rise to protection concerns. As such I do not find that restoring the status quo is a compelling or practical objective to be considered in the circumstances.

Entrusting the courts of the place of habitual residence:

[64] Finally, I am to consider the objective of entrusting the courts of the place of habitual residence with the ultimate determination of what is in the best interest of the abducted child. This objective is no longer as strong a consideration but neutral at best. The child is currently four years, seven months old and has been residing in Petawawa, Ontario for the past two years and three months. Virginia can no longer be considered a better forum for the consideration of the custody issues. While the evidence supporting the mother’s position that she does not have any present mental health or substance abuse issue is presumably available in Virginia, it is not clear that such evidence actually exists over and above what has been produced in this proceeding. On the other hand, much of the evidence relating to the child’s best interests is likely to be found in Petawawa, Ontario.

Disposition:

[65] In summary, I conclude that the father has demonstrated that the child is now settled in to her new environment with him in Petawawa, Ontario. The child’s present environment offers her permanence and stability. I conclude that the underlying objectives of the Hague Convention when applied in the context of this specific application are simply not sufficiently compelling to warrant returning the child to Virginia given the disruption to her life this would cause.

[66] This decision is not a determination of who should have custody, where the child should live or any of the other substantive issues which remain to be determined in the context of custody proceedings.

[67] The mother’s application for the return of the child to Virginia is dismissed. The proceedings commenced in Ontario to determine the child’s custody can proceed.

[68] If the parties cannot agree on costs, then the father may make written submissions as to costs, no more than five pages in length, double-spaced, in addition to any pertinent offers and draft fill of costs, within twenty days of the release of these reasons for decision. The mother has ten days from receipt of the father’s submissions to respond on the same basis. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Fraser J.

Date: August 13, 2019