Superior Court of Justice – Ontario

COURT FILE NO.: FS-20-19356

DATE: 20210407

BETWEEN:

MAIKA HARPER Applicant

– and –

SEAN SMITH Respondent

COUNSEL: Kristen Normandin, for the Applicant Esther Lenkinski, for the Respondent

HEARD: February 24, 2021

BEFORE: M. D. FAIETA J.

Reasons for Decision

INTRODUCTION

[1] The Respondent father alleges that the Applicant mother wrongfully removed their two daughters, Eden Lily Rae Smith, age 5, (“Eden”) and Ivy Jo Lune Smith, age 1, (“Ivy”) from their habitual residence in Scotland on October 8, 2020. The Respondent brings this motion for an order directing that Eden and Ivy (the “Children”) be returned to Scotland. For reasons that are described below I have dismissed this motion.

BACKGROUND

[2] The Applicant is a Canadian citizen. She is 34 years old and was born in Iqaluit. The Applicant’s father, Kenn Harper, resides in Ottawa. The Applicant’s mother is deceased. The Applicant has several brothers and sisters, including Malayah Harper, who resides in Switzerland, and Aviaq Harper, who resides in Denmark. The Applicant is an actress and an author. She was a beneficiary of a modest trust fund after her mother’s death; however, that fund is now exhausted.

[3] The Respondent is a citizen of the United Kingdom. He is 32 years old and was born in Scotland. The Respondent’s father is deceased. The Respondent’s mother resides in Scotland along with the Respondent’s four brothers. The Respondent has a very uneven work history, although it appears that he is now employed as a bartender. The Respondent now lives alone in his grandmother’s house in Dalry, which is almost two hours from Edinburgh by automobile, although he neither owns an automobile nor has a driver’s license.

[4] The parties met in Australia in 2013. On September 1, 2015, the parties were married in Toronto. Their daughter, Eden, was born September 29, 2015. The parties lived in Toronto for about the next four years with the exception of a two-month period of travel to Costa Rica. The Applicant works as an author and actress for two Canadian television networks. The Respondent was largely unemployed while they lived in Canada, although he held a work visa from 2015 to 2019.

[5] The parties separated in March 2017 following an alleged incident of domestic violence. The Applicant states that the Respondent regularly abused alcohol and drugs during their relationship. She states that his substance abuse would lead to physical and verbal outbursts in their home and created an unsafe environment for Eden. During this period, the Respondent asked the Applicant’s sister, Malayah Harper, to send $1,200 to pay for Eden’s child care expenses and she did so by wire transfer dated July 6, 2018. He stated that he was working as a bartender and had no money to pay for child care. The Applicant was unaware that such request had been made until Malayah Harper told her after the parties’ separation in 2020. The money has not been repaid. The Respondent denies receiving these funds.

[6] The parties resumed their relationship about two years later in May 2019 after she learned that she was pregnant. In August 2019, the parties travelled to Costa Rica as they thought that this would provide a relaxing environment during her pregnancy. The Applicant’s condition worsened and the parties returned to Toronto in October 2019. The Applicant told the Respondent that she required his help to care for Eden. At the Respondent suggestion, the parties travelled to Scotland on November 28, 2019 so that his mother could help him care for Eden during the Applicant’s pregnancy and in the weeks following the pregnancy.

[7] Ivy was born on January 9, 2020 in Scotland. The Applicant states that the Respondent assisted her in a “limited capacity” immediately following Ivy’s birth, as she could not move around well.

[8] On August 19, 2020 the parties separated once again. The Applicant states that the Respondent returned home that day intoxicated and became increasingly aggressive. The Applicant ended their relationship that evening and asked the Respondent to leave their apartment. The Respondent contacted her several days later and asked to see the Children. The Applicant agreed to allow the Respondent to see the Children in his mother’s home with his mother being present for the visit.

[9] The Applicant returned to Canada with the Children on October 8, 2020.

[10] This Application was commenced on October 9, 2020.

[11] The Respondent father commenced a Hague application in Scotland on October 29, 2020 for Eden’s return to Scotland.

[12] Numerous affidavits, including numerous reply and sur-reply affidavits, were filed by each party, including third party affidavits. In addition, the affiants were questioned on their affidavits by video conference call.

ANALYSIS

[13] The Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ("Hague Convention") is in force in Ontario pursuant to s. 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.

[14] The leading case in Canada on the Hague Convention is the Supreme Court of Canada’s decision in Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398. In Ludwig v. Ludwig, 2019 ONCA 680, the Ontario Court of Appeal provided guidance on the application of the Hague Convention and Balev in Ontario.

[15] In Ludwig, the Ontario Court of Appeal stated:

19 The Hague Convention has two objects: to enforce custody rights and to secure the “prompt return” of children who have been wrongfully removed or retained: Balev, at para. 24; Hague Convention, Article 1. The object of prompt return serves three purposes: it protects against the harmful effects of wrongful removal or retention, it deters parents from abducting the child in the hope of being able to establish links in a new country that might award them custody, and it aims at rapid resolution of the merits of a custody or access dispute in the forum of a child’s habitual residence: Balev, at paras. 25-27. The Hague Convention is not concerned with determining rights of custody on the merits: Balev, at para. 24. In fact, Article 16 expressly prohibits a court charged with a Hague Convention proceeding from determining the merits of custody rights until the court has determined that a child is not to be returned.

20 The Hague Convention aims to achieve its two objects by permitting any person, institution, or other body that claims that a child has been wrongfully removed or retained to apply for the return of the child to the country in which the child is habitually resident: Article 8. If the person alleged to have wrongfully removed or retained the child refuses to return the child, then it falls to the court to decide whether the child should be returned.

[16] The Hague Convention is not concerned with determining rights of custody on the merits. In fact, Article 16 expressly prohibits a court charged with a Hague Convention proceeding from determining the merits of custody rights until the court has determined that a child is not to be returned”: Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24.

[17] In Ludwig, at para. 21, the Ontario Court of Appeal stated:

There are two stages to a Hague Convention application: determining the habitual residence of the child, and, if the child is found to be habitually resident in the state of the applicant, determining if one of the exceptions to ordering return applies. If the child is not found to be habitually resident in the state of the applicant, then the Hague Convention does not apply and there is no need to consider the exceptions: see Balev, at para. 36.

ISSUE #1: WHAT WAS THE HABITUAL RESIDENCE OF THE CHILDREN IMMEDIATELY PRIOR TO THEIR REMOVAL FROM SCOTLAND?

[18] In Ludwig, the Ontario Court of Appeal stated:

22 Habitual residence is central to the Hague Convention because it defines when a removal or retention of a child is wrongful. As Article 3(a) of the Hague Convention provides, the removal or retention of a child is only wrongful if it is in breach of custody rights under the law of the state in which the child was “habitually resident immediately before the removal or retention” (emphasis added). For example, in this case, the application judge’s finding that the children were habitually resident in Ontario immediately prior to the date of the respondent’s retention of the children in Ontario led her to conclude that this retention was not wrongful, as it did not breach custody rights under Ontario law. Conversely, if the application judge had found that the children were habitually resident in Germany immediately prior to the date the respondent retained the children in Ontario, the application judge would have had to find the retention was wrongful. It would have been in breach of the appellant’s custody rights under German law for the respondent to retain the children in Ontario.

23 I would endorse the two-step approach to habitual residence that the application judge took in this case. Under this approach, the first step is to determine when the alleged wrongful removal or retention took place, and the second step is to determine in which state the children were habitually resident immediately prior to that removal or retention. [Emphasis added]

Step One: Date of Alleged Wrongful Removal or Retention

[19] There is no dispute that the date of the alleged wrongful removal of the Children from Scotland was October 8, 2020.

Step Two: Determining Habitual Residence

[20] In Ludwig, the Ontario Court of Appeal stated:

26 The second step of the habitual residence analysis requires the court to determine where the child was habitually resident immediately before the date of the alleged wrongful removal or retention. As I will explain, in Balev the Supreme Court changed the approach that Ontario courts had previously employed to determine habitual residence.

27 Prior to the Supreme Court’s decision in Balev, Ontario courts applied a parental intention approach to habitual residence. As this court explained in Korutowska-Wooff v. Wooff (2004), 2004 CanLII 5548 (ON CA), 242 D.L.R. (4th) 385 (Ont. C.A.), at para. 8, leave to appeal refused, [2005] S.C.C.A. No. 132 (S.C.C.), a child’s habitual residence was tied to that of the child’s custodians and was determined by the custodians’ “settled intention” to stay in a place for a particular purpose. Under this approach, neither parent could unilaterally change a child’s habitual residence without the other’s consent. Likewise, time-limited travel that both parents agreed to could not change the child’s habitual residence: Balev v. Baggott, 2016 ONCA 680, 133 O.R. (3d) 735 (Ont. C.A.), at paras. 39-40, 42, rev’d 2018 SCC 16, [2018] 1 S.C.R. 398 (S.C.C.).

28 In Balev, the majority of the Supreme Court rejected both the parental intention approach and an alternative child-centred approach. The majority recharacterized parental intention as one relevant factor among many, instead of the controlling factor, and warned against “over-reliance” on this factor: at paras. 45 and 63. It specifically rejected the rules this court had adopted that one parent’s unilateral actions are incapable of changing a child’s habitual residence and that a child’s habitual residence could not change in the case of time-limited travel that both parents agreed to: at paras. 46, 72-73. However, the court also rejected the child-centred approach that the OCL had proposed in its submissions in Balev. Under this child-centred approach, parental intention would be irrelevant and the sole focus would be the child’s acclimatization in a given country: Balev, at para. 41.

29 Instead of the parental intention or child-centred approaches, the court adopted a hybrid model that combined parental intention and the circumstances of the children. The court stressed that under the hybrid approach, the application judge must look at “all relevant considerations,” including both parental intention and the circumstances of the children: at paras. 4, 42. The court stated that the hybrid approach would best fulfill the object of prompt return that animates the Hague Convention: at para. 59. Unlike both the parental intention and child-centred approaches, the hybrid approach would allow the court to consider all relevant factors without relying on formulaic approaches: at para. 65.

30 The aim of the hybrid approach is to determine the “focal point of the child’s life — the family and social environment in which its life has developed — immediately prior to the removal or retention”: at para. 43. To determine the focal point of the child’s life, the majority required judges to consider the following three kinds of links and circumstances:

1. The child’s links to and circumstances in country A;

2. The circumstances of the child’s move from country A to country B; and,

3. The child’s links to and circumstances in country B.

31 The majority went on to outline a number of relevant factors courts may consider in assessing these three kinds of links and circumstances. Considerations include the child’s nationality and “the duration, regularity, conditions and reasons for the [child’s] stay,” along with the circumstances of the parents and parental intention: at paras. 44-45. However, the list of relevant factors is not closed and the application judge must consider the “entirety of the child’s situation”: at para. 47. The child is the focus of the analysis and parental intention is only relevant as a tool to assess the child’s connections to a given country: at para. 68.

32 Certain factors may be more relevant where the child is an infant or is very young. Where a child is an infant, the child’s environment is “essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of”: Balev, at para. 44. Accordingly, the circumstances of the parents, including parental intention, may be especially important in the cases of infants or young children: para. 45.

33 Balev establishes that habitual residence is a question of fact or mixed fact and law and that an application judge’s determination of habitual residence is subject to deference. The court specifically stressed that the hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions”: at para. 47. The application judge must consider the entirety of the child’s situation and no one factor necessarily dominates the analysis: at paras. 44, 47. [Emphasis added]

[21] I now turn to consider the relevant circumstances, including both parental intention and the circumstances of the Children, in order to determine the focal point of the Children’s lives having regard to their family and social environment in which their life has developed, immediately prior to their removal to Canada.

Parental Intention

[22] Using the parental intention approach, “habitual residence” is the place where a person resides for an appreciable period of time with a "settled intention", meaning an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.: Korutowska-Wooff v. Wooff, 2004 ONCA 5548, at para. 8.

[23] The Applicant states that she and the Respondent agreed to leave Ontario and travel to Scotland for “a temporary six-month vacation stay”. The Applicant states that she had a difficult pregnancy with Ivy and that the Respondent told her he was not comfortable caring for Eden on his own, but if they travelled to Scotland then his mother could help him care for Eden. The parties placed their belongings in storage. The Applicant’s automobile was left in a parking lot near Pearson Airport in Toronto. The Applicant entered the United Kingdom on a six-month visitor’s visa that expired on May 27, 2020

[24] On the other hand, the Respondent states that the Applicant suggested that they move to Scotland as it would allow them to both work after Ivy was born. He states that his work visa in Canada was coming to an end in May 2020 and that he did not qualify for permanent residency due to his low income. He also states that they never discussed a Canadian spousal visa for the Respondent.

[25] On December 1, 2019, the Applicant posted on social media:

Have just moved back to Scotland to be closer to family for our precious baby #2 and couldn’t be happier. …

[26] The Applicant applied for a spousal visa in December 2019. By letter dated December 18, 2019, the Applicant was advised by the Government of the United Kingdom that her application had been refused as she failed to demonstrate that she or the Respondent had an annual income of £18,600 or held savings of £62,500 in an account for a minimum of six months.

[27] A further social media post on February 11, 2020 by the Applicant states “Moved to Edinburgh, United Kingdom”. The parties stayed in rented accommodations. Their furniture and belongings were never shipped to Scotland. They exchanged real estate listings but did not make an offer on any of these listings as they did not have the financial means to purchase a property.

[28] The Applicant states that it was her intention to return to Ontario in May 2020, once her visitor’s visa expired. Prior to leaving Canada, and in anticipation of eventually returning to Canada, on November 15, 2019, the Applicant booked a one-way flight from Edinburgh to Copenhagen on May 4, 2020. She states that it was her intention to visit her sister, Aviaq Harper, who resides in Denmark, before returning to Canada. However, on April 14, 2020, the airline notified the Applicant that it had cancelled this flight as a result of COVID-19. On May 23, 2020, the Applicant posted a photo of herself on social media holding a bag of flowers with the caption “Would have been back in Canada today but instead buying flowers in the UK. #coronavirus”.

[29] The Applicant states that after COVID-19 delayed her return to Ontario, she re-applied for a visa in July 2020 as she was running out of money and her debts were mounting. However, the Applicant withdrew this application as she felt that she needed to return to Ontario to work.

[30] I find that the Applicant resided in Scotland for an appreciable period with the intention to temporarily stay there in order to obtain the assistance of the Respondent’s mother to help care for Eden during the period following Ivy’s birth. However, circumstances, including financial pressures and being denied a spousal visa, resulted in the Applicant wanting to return to Canada so that she could earn an income.

The Children’s Links to and Circumstances in Scotland

[31] The Children are both Canadian and British citizens.

Family Environment

[32] The Applicant states that:

(a) The Respondent has no residence in Scotland. The parties stayed in rental accommodation in Edinburgh, Scotland. The Respondent’s mother lives and works over an hour away from Edinburgh in Strathaven, South Lanarkshire and was not easily available to assist the family.

(b) After their arrival in Scotland, the Respondent father did not become involved with the Children and he did not obtain employment. She states that he lay about the home and smoked marijuana all day. If she asked him to take Eden for a walk, the Respondent would become angry.

(c) After Ivy’s birth, the Respondent provided some assistance in caring for the Children. However, the Applicant continued to be primarily responsible for the care of both Children as she was responsible for feeding, bathing and dressing them as well as washing their clothes and taking them to activities. As a result, the Applicant mother continued to be solely responsible for caring for Eden and eventually their younger daughter, Ivy.

(d) The Applicant states that the Respondent resumed his usual behaviour of either disappearing from their home to go to the pub or smoking marijuana and refusing to help her with household or child-related chores. A text message dated April 1, 2020 from the Applicant to the Respondent states:

It's really not fair. I asked you to be more present as a parent. You didn’t even wait until Ivy was settled or asleep. Thanks. Just help me out once and a while please. I shouldn’t have to keep asking.

(e) She states that the Respondent did not care for the Children alone for any significant period of time while she was in Scotland and that he required his mother’s assistance to do so.

(f) After their separation, the Applicant continued to reside in the apartment. The Applicant states that the Respondent moved out of the city and did not participate in the Children’s daily care or routine from August 2020 to October 2020.

[33] The Applicant does not have any family in Scotland. However, her two sisters visited her in Scotland.

[34] Malayah Harper resides in Switzerland and visited the Applicant twice in 2020. First, she and her 12-year-old daughter visited the parties from January 24, 2020 to January 26, 2020 following Ivy’s birth. Malayah Harper states:

During this time, it was apparent to me that Maika was primarily responsible for both children’s care, notwithstanding that she was still recovering from her delivery. During our visit, Maika, my daughter and I would take Eden and Ivy on walks, go to the park, and play games with the girls. Sean did not participate in our activities and would often sleep late into the day. During our January 2020 visit, I witnessed Sean going into another room to smoke marijuana a few times per day. Sean did this with Eden, Ivy and my daughter present in the rental accommodations. The smell of marijuana was present in the rental accommodations. I raised this concern with Maika who confirmed to me that it was an ongoing problem and that she had tried to address this with Sean.

[35] Aviaq Harper resides in Denmark and visited the Applicant over a six-day period commencing on August 17, 2020. She observed that the Applicant was primarily responsible for the care of the Children. She states that the Respondent did not accompany them on any walks or activities. Aviaq Harper was also present on August 19, 2020 when the Respondent returned to their apartment severely intoxicated with a friend late that evening while everyone was sleeping. The Respondent left the apartment after he refused to lower his voice; however, he then returned through a window and was found sleeping in Eden’s bed. The parties separated following this episode.

[36] The Respondent is the oldest of five sons born to Isabel Smith. Ms. Smith, a widow, lives in Strathaven, Scotland. Ms. Smith is a social worker who worked for 39 years in Scotland with Children in need of protection. She now works with sex offenders and domestic abuse offenders. Following their arrival in Scotland, the parties lived with Ms. Smith from November 27, 2019 until they moved to Edinburgh on about January 20, 2020. There were not many visitors during this period as the Applicant was not in good health during her pregnancy with Ivy.

[37] The Respondent and his mother state that the parties moved to Edinburgh because she told them that the schools in the area of Edinburgh where they rented an apartment were “good”. Ms. Smith took the month of January 2020 off from work to help care for Ivy. After the parties moved to Edinburgh, Ms. Smith stayed with the parties a couple of nights each week and would sleep in the same room as Ivy. In February 2020, Ms. Smith reduced her visits to once every two weeks. Lockdown restrictions started in about the third week of March 2020. Ms. Smith did not have any contact with the Children until mid-May 2020.

[38] The Children stayed with Ms. Smith in her home on May 18-19, 2020 and Eden stayed with her again on May 28-31, 2020 and June 15-17, 2020. She stayed in Edinburgh alone with the Children on August 6-8, 2020 while the parties went on a trip.

[39] Ms. Smith states that her other sons visited the Children:

(a) She witnessed her son Ross visited Eden and Ivy two or three times;

(b) Her son Connor visited Eden and Ivy in her home three or four times;

(c) She drove Eden to see her sons Connor and Michael in Paisley once;

(d) She drove Eden and Ivy to see her son Ross in Dalry at least once;

(e) Her son, Mathew, lives in Copenhagen and she believes that he stayed with the parties in their apartment for his 30th birthday

[40] Ms. Smith also states that her nephews, Traian and Kieran, visited the parties on many occasions in Edinburgh.

[41] Text messages from the Applicant to a friend of the Respondent, Amy Dudley, shows that the Respondent took the Children out on two occasions so that the Applicant and Ms. Dudley could meet for dinner.

[42] After the parties separated, the Respondent lived with Ms. Smith. The Respondent states that the Children stayed with the Respondent and Ms. Smith every weekend. The Applicant states that the Respondent cared for the Children always with the assistance of his mother and only on three occasions from August 2020 to October 2020. The Applicant denies the Respondent’s evidence that he would take the Children to his grandparents’ home twice per week following their separation.

Social Environment

[43] There is little evidence of the Children’s social environment while they lived in Scotland. Their apartment’s neighbourhood is surrounded by parks which the children frequented. Eden attended Preston Street Primary School starting in September 2020 for about five weeks before she returned to Canada. The Children attended a local medical clinic on several occasions.

The Circumstances of the Children’s Move from Scotland to Canada

[44] Following their separation on August 19, 2020, the Applicant told the Respondent that she would be moving back to Canada with the Children. Her letter dated September 6, 2020 explains her reasons for returning to Canada with both children. She states:

I am writing you this letter in the hopes that you will listen to me because you're making it very difficult to even communicate. I cannot stay in the country any longer. I legally cannot. I can apply for another visa but at this point I simply do not have the funds to do it. I am very close to being broke and NEED to get back to Canada to work. Looking at the bigger picture and not being overly emotional is important, albeit hard to do most days as these are sensitive issues. I don't think you understand the severity of how the pandemic has affected me and my family this year. Usually, I would be able to support you financially but I simply can not do it anymore. The pandemic has hit many people hard and I would really hope you understand that. I need to go home and work.

Right now I want you to know I am not being vengeful in anyway but I do really think it is in my families best interest to go. All of Eden (and now Ivy's) things are there. Her friends and extra curricular things are all there. The stability we all need is there. Her clothes, bike, toys, friends and everything are there.

Not only is my work there but my doctors are all there. People I trust and support me are there. I need to be closer to all of that. It's important for my own mental health and my own wellbeing. I hope you understand that.

Jenny has a friend that is moving back to Winnipeg and has graciously offered her beautiful 3 bedroom house to me (with a babies nursery and crib etc) and I still have my entire storage unit with my car and all of our things. It just makes sense to live closer to friends at this point and have Eden in a school further away from the city.

Eden's teachers have all given her space at the Native Child Learning Centre along with free childcare when needed for Ivy for an hour if I need to go for auditions or if we ever just want to visit.

I would also like our girls to meet their Grandfather because he is high risk and during these times I think it's important. My sister Avi is a flight attendant and has also offered being the girls companion when/if needed to bring the girls to and from the UK and Canada because I would hope you would want to still continue co-parenting.

In the school year there are breaks every 6-8 weeks and I would like for the girls to visit you every chance they get and hopefully vice-versa. From Thanksgiving, to Christmas and New Years and Ivy's Birthday, March break is half a month (but we can make it a month like two years ago) and then it's Summer.

I want you to fully understand that I have tried very hard to stay in this country. I have spent almost $10 000 on visas alone. I simply cannot afford any more at this point. Now I legally cannot stay in the country any longer and I need to work and I really hope you can understand that I would like to continue co-parenting our children like we have in the past. With grace and civility.

Our landlords have been very nice and have offered to just have both of us write to them saying we would like to terminate our lease giving us 30 days to vacate the unit. If we pay rent though that would give us legally until October 20th. Then the deposit and such is done afterwards I believe. Otherwise we still move in a couple months anyway but again, I can't afford it here so we'd have to move sooner.

Those are the facts and when laid out like that it becomes very clear what we should do. [Emphasis added]

[45] On September 7, 2020, the Respondent replied as follows:

Hey, I read your letter and wanted to let you know my feelings.

Firstly I want to say that I share your sentiments that going forward I hope we can co‐parent responsible and with respect for one another. As I have said previously, I still love you immensely and that's not going to change anytime soon.

As far as your letter is concerned I have read it a number of times and totally respect that the points you are making are what you believe to be in the best interests of you and our children. I would hope that you can now read my following opinions objectively and accept that they are what I believe to be in the best interests of our children.

In the current situation there is absolutely no easy solution that much is clear. Coming to a joint decision is going to involve both of us making sacrifices for the children's sake. I truly believe that the best outcome lies in allowing the kids to have both their mother and father present in their day to day lives as much as possible. The Mum and the Dad are equally important in nourishing and creating the essential loving bonds that help in their growth. Living on another continent separate from one or the other is clearly contrary to that. Obviously given the circumstances, we both find ourselves in a difficult situation, but I personally feel that there are better options than the one you are proposing.

I understand the financial strains that you are currently under and that visa complications have put you in a difficult spot but whilst there is still a possibility for you to obtain a visa‐ and one which will allow you to work in the UK‐ that is the most sensible route to go down. I have researched and found a number of paths which would allow you apply to remain in the UK on the basis that your children are both British citizens and ordinarily resident here, with one being enrolled in the education system. There's a specific application that deals with marriage breakups and divorce. I would also be willing to financially support you by covering any financial cost of such an application and also helping you with any other costs going forward rent, childcare, therapy etc. That is the least I can do after all you have done for me over the years.

I know that you said Eden's stuff is in Canada and while I accept that her things are important to her, I value her relationship with her father more than her toys. In Scotland, the girls have an incredible supportive family unit, something that Eden has never had the luxury of having before and that shouldn't be underestimated.

I completely understand you wanting to return to Canada. I have seen your mental health suffering tremendously for the last 9 months and believe it would be in your best interests to go for a period of time that would allow you to work, seriously deal with your health for the benefit of your children and have some much needed bonding with your friends. However, given how sick you are I don't believe that it is in our children's best interest to not have their father around. The thought of you having your next episode while I am thousands of miles away and unable to be there and protect my children is a huge worry. I would be lying if I said I wasn't concerned about your health as I've watched it deteriorate so badly this year.

I know how scary the idea of not having your children around is as I am going through the exact same thought process and therefore, I would be happy to allow Ivy to return to Canada with you for an extended period of time whilst you worked and did whatever else you need to do, while Eden remains in the UK and continues her schooling (at least in the short term). That would also allow Ivy to spend lots of quality time with her Grandfather. This is far from an ideal solution but there isn't going to be one, so this would at least allow both of us to continue our parenting roles and cause (at least in the short term) less upheaval and uncertainty for the kids‐ mainly Eden who at her age is going to be adversely affected more. We can then reassess the situation in regards to whether or not a Visa application of yours is successful. I am also open to the idea of moving myself back to Canada in the future if that is a possibility so like I say I am only thinking short term at the moment.

I hope you can read this and not thing I am being spiteful or vengeful in anyway. It is purely what I believe to be the best solution in a terrible situation and one that I think is most beneficial to the children. [Emphasis added]

[46] Two days later, on September 9, 2020, the Respondent withdrew his support for Ivy to return to Canada with the Applicant. His email states:

After trying and being unable to talk to you yesterday I'd like to make it very clear to you my stance on taking Ivy with you to Canada.

I signed the permission to travel form for Ivy, on the understanding that Eden would remain in Scotland with her Father while you went to Canada and seriously worked on your mental health. I told you in no uncertain terms in our previous correspondance that that was what I thought was in the best interests of our children. Now it would seem clear that you actually have no intention of allowing this to happen as you have already booked flights for Eden and Ivy and claim to have gone as far as signing Eden up for school in Canada without so much as even discussing it with myself.

In addition to this you have so far failed to even tell me the date in which you plan to leave the country with our children something I assume you have know for some time.

I would like to put it on record that I unequivocally WITHDRAW my permission for Ivy to travel with you. She DOES NOT have my blessing for you to take her to Canada. This is on the basis that the permission to travel was granted by me, on the basis that our daughter Eden would remain in the UK and continue with her education, in-turn resulting in as little upheaval to her life as possible.

As a result of this apparently changing, I cannot authorise Ivy to travel with you to Canada when you leave the UK and my previous permission is withdrawn. [Emphasis added]

[47] The parties discussed trying to mediate a parenting plan. The Respondent made contact with a mediator in late September 2020; however, it does not appear that the Applicant did so.

[48] On October 4, 2020, the Respondent sent the following email to the Applicant. He stated that he would permit Ivy to travel to Canada but not Eden. He wrote:

Hey Mickey, firstly I want to say that I enjoyed Eden's birthday too. It was a really nice time and cool to meet your friends and be able to share some joint time together with the girls. I liked that and I am sure they did too.

In terms of my belief on what is currently best for Eden it hasn't changed since we last talked. I still don't think it is fair or right to take her away from Scotland at this time. It is very important to me that she is managed in a way that she understands the situation and how her life is going to change. In my opinion it is unfair on her to have such limited time to prepare for moving to Canada and for her brain when it comes to being told and processing it all. She is only little. For example, she still doesn't understand why her mummy and daddy are not living together anymore; she seems to think it is because I am sick. On top of that she is then going to have to work out why she is moving back to Canada without her Dad and why she is moving away from her family into a country where she will have none. That is a hell of a lot for a 5 year to have to process. I think this is an extremely sensitive time for her and that it's simply far too much at once and has a real possibility of having a longer lasting negative impact on her. I still feel she should stay here for the next 8 weeks and prepare for the next stage of her life reducing the chances of the sudden upheaval having longer lasting negative effects on her. I know you mentioned that I think her school is important but it is less the schooling itself and more the maintaining of some stability in her life, that is really important for a child especially at a time of real uncertainty for their mum and dad. She gets this stability from other stuff too for example by just staying in and being familiar with Edinburgh, visiting Granny on the weekend etc.

I have a temporary place across the road from her current house where Eden can have her own room and we can stay a week or two if needs be while my house applications are being processed (ideally these will be processed quickly and we can move right in but it depends on Covid). I know you talk about not separating the girls, but at the same time you appear to have no issue with separating the girls from their father which I have to admit I find quite insulting to all that I offer them especially when in a previous message you seemed to indicate that even Eden's things in storage were more important.

As I said before, I am willing to give you permission to travel with Ivy and will sign and notarise a permission form if that's what's required. What I will make clear is that this is not what I want. Far from it. Although I do think it is imperative that Ivy has her mother by her side I don't believe moving to Canada is in her best interests in the longer term as I value a strong, supportive family unit over everything in a child's development and she won't have that over there. That said, I am willing to make a sacrifice and put aside how I feel in an attempt to ensure that me and you have a cordial relationship going forward for the benefit of the girls and that would clearly be much more challenging if we had to go through the courts and have other people decide what's best for our kids and where they ought to live. I simply do not want that.

This is my opinion and it's not going to change in the next 10 days. I am sorry if you find this hard to understand but it isn't a personal vendetta against you, it's simply how I feel is best to protect Eden going forward in the short term and then she can prepare to build a new life for herself in Canada in a few weeks. [Emphasis added]

[49] The Applicant replied later that day stating that she would not split up the Children for eight weeks as suggested by the Respondent. She stated:

Sean, I refuse for my daughter to live in such an unstable environment. I also will not allow my daughters to live all over the place. From a place across the street for a couple weeks, to living at Granny’s. We have never agreed to living weekend’s at Granny’s by the way and I have stated previously many times that that schedule did not work for the girls. I might also add that she has only been doing that every so often and more frequently as I am allowing overnight visitation with you and you live with her now.

No one will raise my children but myself and their father. If you need help doing so then you are clearly not in a position to even have over night visitation if that were the case.

You are also not looking at the bigger picture. Eden has never been away from her Mommy for that long. Now I understand it is difficult for her that we are separating but we have done this in the past and the police were involved then so realistically I would like to try to keep it out of the courts and keep it as cordial as possible. The more cordial we do this the better but I will not disrupt her life for your convenience. She lives with me and has always lived with me and to upset that would actually be quite detrimental.

She will also not be without her mother, she hasn’t in the past and she definitely will not be during a pandemic - she’s 5 for crying out loud. Now again, as their full-time caregiver I will not separate the children.

[50] On October 6, 2020, the Respondent asked the Applicant for clarity regarding her intentions. His email states:

Mickey this going back and forth with nothing productive coming out of it is getting tiring.

I have made it clear for weeks now what I think is in the best interests of the girls and Eden. You seem intent on a making no compromise and are continually devaluing my role and equal right as a parent to our girls. Now these are the only options I can see and I basically need you to pick one and tell me which it is so I can start making my own plans on how best to deal with it.

1, Eden stays with me until Christmas as discussed in our previous messages, prepares herself for going to Canada while you take Ivy, work, deal with your mental health and find a family home to live in. We do mediation in the meantime and come and sign a parental agreement form for future.

2, If avoiding separation of the girls is of that much importance to you, then Eden and Ivy stay here, in Scotland while you go to Canada, work and you apply for a UK visa or we draw up a parental agreement form going forward.

3, You take the girls on the 14th, without the permission or consent of their father to Canada perhaps breaking child abduction laws.

Now I need you to just tell me which one of these you are doing in 8 days time so like I say, I can make my own plans for the outcome because the time scale is now getting ridiculous.

In terms of Eden being taken out of school I don't agree with that. The case numbers are higher now because the number of people being tested is of a far greater number than at any time previously. The govt health advice says that mixing households is what is causing the most danger and neither of us have been doing that with Eden. The announcement today says that there's no plan to close or partially close schools. They also say that children are being over tested and that they should display 2 out of 3 symptoms temperature, continuous cough, loss of taste and behavioural changes such as appetite, nausea etc. There's also not been any cases at her school so I think it's premature to remove her. [Emphasis added]

[51] On October 7, 2020, the Applicant advised the Respondent that she would be taking the Children with her to Canada. Her email states:

Sean, You are being so unreasonable. You have to understand I have to leave the country. And I will not do that without my children. And again I will not separate them. That is not in their best interest.

I am not taking the children away forever. But they do live with me and I do have to leave the country. That doesn’t mean I have to leave forever but the way you have been treating me makes me feel unwelcome in the UK.

It’s a pandemic. My visa has run out. Now I would like to be able to come and bring the girls for visits and holidays every 6-8 weeks like I had mentioned previously. But after speaking with an immigration specialist it seems I might not be allowed back in the country for at least a year because of overextending my visa. If I leave as soon as possible than that won’t be the case.

I also want to remind you there is another lockdown coming. It is not even funny anymore. I have to leave before all the flights get cancelled. Now again. I hope you can understand this isn’t an attack. Please be reasonable. [Emphasis added]

[52] On October 7, 2020, the Applicant told the Respondent that he could pick up the Children for the weekend on October 9, 2020. Instead, the Applicant returned to Canada with the Children on October 8, 2020 without the Respondent’s permission to take both Children to Canada.

The Children’s Links to and Circumstances in Canada

Family Environment

[53] The Applicant states that she has “significant family and friends” in Ontario.

[54] The Applicant’s father, Kenn Harper, resides in Ottawa. He states that he is 76 years old and has leukemia. Both the Applicant and Mr. Harper deny that they are estranged as suggested by the Respondent. Despite his condition, he states that he has spent “significant and meaningful” time with the Applicant and Eden on visits in Toronto and Ottawa. He has seen and spoken to the Applicant and Eden over the telephone and on social media. He has not yet seen Ivy in person as a result of COVID-19 travel restrictions; however, he has seen and spoken to her on video calls and social media. Mr. Harper has established a Registered Education Savings Plan for Eden that has a balance of about $20,000 and intends to do the same for Ivy.

[55] Mr. Harper states that on the occasions that he saw the parties together, it was the Applicant that assumed the majority of the parenting responsibilities for Eden, such as feeding, changing her diaper, giving her baths, putting her down to sleep and changing her clothes. He states that the Respondent has been willfully unemployed for the majority of their marriage and that he has relied on the Applicant’s support.

[56] The Applicant also states that she is close with her cousins in Toronto, Nyla Innuksuk and Jed Harper, who live close to her and the Children in Toronto. On occasion, the Applicant, Eden and Ms. Innuksuk have taken trips to visit family at different locations in Ontario. As well, Jed Harper goes for walks with the Applicant and Eden.

[57] The Applicant also describes numerous other friends, including some long-term friends, such as Jenny Skene and Lucienne Makolo, whose children now have relationships with Eden.

[58] Her family has an annual cousin gathering every summer on the lake near Buckhorn, Ontario.

[59] On questioning, Malayah Harper stated that she speaks with the Applicant between 3 to 5 times per week, usually on WhatsApp. She also stated:

I further dispute Sean’s allegations that Maika is not close with her family members or siblings. Maika and I have always had a close relationship which grew when I travelled back to Iqaluit, Nunavut from Toronto to care for Maika, our brother and our father following Maika’s mother’s death. Despite living abroad for a number of years, I travelled home for our annual family gatherings in the summertime. Maika and I have spent time together at family gatherings in Toronto and Ottawa with our other family members over recent years. I spent time with Maika just before Eden’s birth in 2015 and Maika solely organized our brother Troy’s surprise 50th birthday party in March 2016. Maika and Eden also attended my wedding together in 2016. Sean did not attend. We also spent Christmas together in Ottawa in 2018. Evidence of these events is attached at Exhibit “B”.

Social Environment

[60] The Applicant was born in Iqaluit. She is Inuk and embraces her aboriginal culture. The Applicant speaks Inuktitut to her Children and has written a children’s book for an Indigenous publisher. In addition, the Applicant was heavily involved as a parent mentor in the Aboriginal Head Start program, which is the kindergarten program that Eden attended and that Ivy could also attend.

[61] Eden attended the Aboriginal Headstart Program from September 2018 to the end of June 2019, and then from October 2019 to late November 2019, when the parties travelled to Scotland.

[62] The Applicant states that she and Eden have attended regular powwows in the Greater Toronto Area to support their Indigenous brothers and sisters. In addition, Eden has always been involved in the Christmas Feast, which is an important cultural gathering in Toronto for all people with Inuit heritage. Eden and the Applicant attend the Spadina Aboriginal Cultural Centre and make the ornaments for this gathering. Only Inuktitut is spoken at these gatherings.

[63] Eden has been a patient of Dr. Lin at Eastdale Medical Clinic since August 2018. She has also been a patient of Dr. Sharon Walden, a dentist in Toronto, since 2017.

Conclusions

[64] Ivy spent the first nine months of her life in Scotland at the time she was removed to Canada in October 2020.

[65] I adopt the view expressed in J.M. v. I.L., 2020 NBCA 14, at para. 27:

Balev instructs that relevant considerations may vary depending on the age of the child. Typically, an infant or a toddler's environment will be linked to the parent who looks after the child's every need:

[...] where the child is an infant, "the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of" [...]. [para. 44]

[66] The evidence is clear that the focal point of Ivy’s life and her environment during her first nine months of life was her primary caregiver, the Applicant, and that the Respondent took a back seat role in her care. While the Respondent’s mother provided some respite for the Applicant on occasion, I find that the Applicant was the focal point of Ivy’s life at the time of her removal from Scotland in October 2020.

[67] Eden lived in Scotland from November 28, 2019 until October 8, 2020. Thus, by the time she returned to Canada, Eden had lived about 50 months in Ontario and another 10 ½ months in Scotland. In my view, the principle in J.M. does not apply to Eden given that she was no longer a toddler by the time of her removal from Scotland. In any event, having considered all of the evidence, including the fact that she had spent about 80% of her life in Canada by the time of her removal from Canada and thus most of her life experiences were based in Canada, I have come to the conclusion that Eden was habitually resident in Canada at the time of her removal from Scotland in October 2020. Scotland, not Canada, was the focal point of the family and social environment in which her life had developed immediately prior to her removal from Scotland.

[68] In the event that I should have concluded that the Children were habitually resident in Scotland at the time of their removal from Scotland, and thus required them to be returned to Scotland, below I have addressed the Applicant’s position that the Children should not be returned to Scotland.

ISSUE #2: DO ONE OF THE EXCEPTIONS TO ORDERING THE RETURN OF THE CHILDREN TO SCOTLAND APPLY?

[69] In Ludwig, the Ontario Court of Appeal stated, at para. 34:

If the court determines that the child was habitually resident in the country of the applicant at the time of the alleged wrongful removal or retention, Article 12 of the Hague Convention provides that the court “shall order the return of the child.” However, Articles 12, 13, and 20 also outline five exceptions to this obligation to return the child. These exceptions come into play only after habitual residence is determined: see Balev, at para. 66. In Balev, at para. 29, the Supreme Court summarized these exceptions as follows:

1. The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

2. There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3. The child of sufficient age and maturity objects to being returned (Article 13(2));1

4. The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,

5. The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

[70] The Applicant submits that Articles 13(a) and 13(b) apply. For reasons explained below, I have found that the relevant exceptions would not preclude the Children’s return to Scotland if I had found that the Children were habitually resident in Scotland at the time of their removal.

Did the Respondent father exercise custody prior to the removal of the Children?

[71] Article 13(a) states

Notwithstanding 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.

[72] The Hague Convention distinguishes between “rights of custody” and “rights of access”. Article 5 states:

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.

[73] The threshold for demonstrating actual exercise of custody rights is low: Jackson v. Graczyk, 2007 ONCA 388, 86 O.R. (3d) 183, at para. 47. In Jackson, the Ontario Court of Appeal stated at para. 41:

Under Article 3(b) a child's removal from his or her habitual residence to another jurisdiction is wrongful only if the parent seeking the child's return has actually exercised rights of custody. Exercise in the context of Article 3(b) "must be construed widely as meaning that the custodial parent must be maintaining the stance and attitude of such a parent". See H. & S. (Minors), Re(1990), [1991] 2 A.C. 476 (Eng. C.A.) at 500.

[74] The Applicant states:

Following the parties’ separation in August 2020, Sean exercised extremely limited access with the children, seeing them on only three occasions from August to October 2020, always with the assistance of his mother. Importantly, Sean had the ability to remain in Edinburgh following the parties’ separation, as his paternal grandparents and cousins live in Edinburgh, but Sean chose to leave the city altogether (residing hours away), leaving the children in Maika’s sole care. Sean does not work and has no time commitments during the week. Despite this, Sean never sought to see the children for parenting time during the week, to take them to the park or to assist with their daily routines. Sean was content to see the children on a minimal basis, and always with the assistance of his mother. It is submitted that Sean’s limited role in caring for the children must be considered as a factor in the Court’s overall analysis.

The Ontario Court of Appeal in Jackson v. Graczyk upheld the trial judge’s decision in finding that the father was not exercising his right of custody, notwithstanding that the father had visited the child and was present for his birth. The Court found that the father was not involved in the child’s life in a way that demonstrated the “stance or attitude” of a parent.

[75] The Respondent states:

Sean was exercising custody rights at time Maika removed the children. The parties agreed to attend mediation for the purpose of agreeing upon a co-parenting schedule and on a temporary basis, Sean cared for the children every Friday to Sunday and had visits during the week, with the exception of two weekends when Maika was concerned Eden had COVID and another weekend when Maika wanted to care for the children over the weekend and Sean agreed. Sean also cared for the children mid-week on three occasions, including Eden’s birthday. Sean was exercising custody of the children and Maika’s claim that he exercised access only three times after the parties separated is false. Maika engineered a variation to the weekend schedule in order to facilitate her abduction of the children on October 7th. 2020.

[76] I find that the Respondent father has met the low threshold of establishing that he maintained the “stance and attitude” of a custodial parent prior to the removal of the children in that: (1) he exercised parenting time with the Children on a regular, if infrequent basis; (2) he had filed an intake form in early October 2020 with a mediator for purposes of developing a parenting plan with the Applicant; (3) he enrolled Eden in a primary school and brought her to a medical clinic in Edinburgh; (4) gave written permission for Ivy to travel in October 2020 to Canada, which he then revoked by email; (5) refused to provide written permission for Eden to travel in October 2020 to Canada under any circumstances.

Did the Respondent father consent to the removal of the Children?

[77] In Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), at paras. 46-49, the Ontario Court of Appeal stated:

46 The words "consent" and "acquiescence" as used in Article 13(a) of the Hague Convention should, in my view, be given their ordinary meaning so that they will be consistently interpreted by courts of Hague Convention contracting states. In any case, I can see no logical reason not to give those words their plain, ordinary meaning.

47 "Consent" and "acquiescence" are related words. "To consent" is to agree to something, such as the removal of children from their habitual residence. "To acquiesce" is to agree tacitly, silently, or passively to something such as the children remaining in a jurisdiction which is not their habitual residence. Thus, acquiescence implies unstated consent.

48 Subject to this observation, I agree with Lord Brown-Wilkinson's approach and analysis in H (Minors), Re. When Lord Brown-Wilkinson said that "[a]cquiescence is a question of the actual subjective intention of the wronged parent, not the outside world's perception of his intentions", he was, it seems to me, really speaking of the wronged parent's consent to a child's removal or retention based on evidence falling short of actual stated consent. That is what acquiescence is — subjective consent determined by words and conduct, including silence, which establishes the acceptance of, or acquiescence in, a child's removal or retention.

49 To establish acquiescence in the Article 13(a) Hague Convention context — "subsequently acquiesced in the removal or retention" — the mother must show some conduct of the father which is inconsistent with the summary return of the children to their habitual residence. In my view, to trigger the application of the Article 13(a) defence there must be clear and cogent evidence of unequivocal consent or acquiescence. In my opinion, the evidence on which the mother relies does not meet that test.

[78] There are two options outlined in the Respondent’s email dated October 6, 2020 that are relevant to this issue. Under option #1, the Respondent agreed to Ivy travelling to Canada if Eden remained in Scotland. That did not occur. Instead, the Applicant removed both Ivy and Eden. Option #3 of that email addresses those circumstances and it provides that removal of both girls would be “without the permission or consent of their father”. I find that the Respondent did not consent or acquiesce to the Children’s removal from Scotland. Consequently, and because the Respondent was exercising custody rights at the time of removal, the Article 13(a) exception would not apply in this case if the Children were habitually resident in Scotland at the time of their removal.

Is there a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation?

[79] A court may refuse to order the return of a child under Article 13(b) when there is grave risk that the resulting physical or psychological harm to the child from their return would place the child in an intolerable situation. The risk must be a “weighty one”: Thomson v. Thomson 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at paras. 82-83.

[80] An intolerable situation “… speaks to an extreme situation, a situation that is unbearable; a situation too severe to be endured.” In applying Article 13(b), the consideration of a child’s best interests is limited to this narrow perspective: Jabbaz v. Mouammar, 2003 CanLII 37565 (Ont. C.A.), at paras. 23-24.

[81] The burden rests with the parent opposing the return of the child to establish a grave risk of an intolerable situation: Gourgy v. Gourgy, 2018 ONCA 166, at para 10.

[82] The Applicant submits that:

103. Sean suffers from alcohol and drug abuse issues. These issues result in Sean’s inability to care for the children on his own and would result in an unsafe environment for the children, particularly Ivy, given her young age, in the event they are ordered to be returned to Scotland. Sean becomes aggressive and violent when he is intoxicated. Sean’s intoxication has led to two separations between the parties, once after Sean was arrested for choking Maika and again in August 2020 when Sean broke into the parties’ rental accommodations and Maika found Sean sleeping with Eden in her bed. Sean’s behaviour is inappropriate, unpredictable and has the potential to cause significant harm to the children.

104. Of further concern is that Sean has no residence in Scotland. He is currently residing with his grandmother in Dalry. His grandmother is a hoarder and the police have found her home to be legally inhabitable. Sean has not been gainfully employed in years and, as such, he has no savings and no ability to pay for the children’s expenses or their daily care.

[83] I am not satisfied that the allegations of substance abuse and domestic abuse present a grave risk of placing the Children in an intolerable situation. The Applicant’s concerns do not easily align with the Applicant’s own evidence that she encouraged the Respondent, while they were living together, to take a larger role in the Children’s care and being content when she left the Children in his care for the evening or overnight so that she could go out for the evening with a friend.

[84] Further, I am not satisfied that the allegations of unsafe living conditions of the residence of the Respondent’s grandmother and the Respondent’s impecuniosity present a grave risk of placing the Children in an intolerable situation. There was very little evidence regarding the condition of the grandmother’s house and it does not necessarily follow that the Children would live in that house, particularly given that Eden is enrolled to attend a primary school in Edinburgh.

[85] For all of these allegations, the living conditions and circumstances of the Children can be ascertained by the local child protection agency at the behest of the Applicant if she is concerned. I note that the Respondent took a similar step after the Applicant returned to Canada with the Children. A letter from Native Child and Family Services of Toronto dated January 12, 2021 advised the Applicant that it had been contacted to conduct a wellbeing check given concerns with her mental health and after speaking with medical health professionals and viewing her home, had no concerns with her wellbeing or ability to provide care.

[86] Because I have found no grave risk that returning the Children would expose them to harm or place them in an intolerable situation, the Article 13(b) exception would not apply if I had found that the Children were habitually resident in Scotland at the time of removal.

CONCLUSIONS

[87] The Respondent’s motion is dismissed.

[88] The Applicant shall deliver her costs submissions by April 16, 2021. The Respondent shall deliver his responding costs submission by April 23, 2021. The Applicant shall deliver her reply submissions by April 30, 2021. Each costs submission shall be no more than three pages long excluding an outline of costs and any offers to settle.

Mr. Justice M. D. Faieta

Released: April 7, 2021

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MAIKA HARPER Applicant

– and –

SEAN HARPER Respondent

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: April 7, 2021