COURT FILE NO.: FC-17-FS000676 DATE: 2024/09/06

Superior Court of Justice – Ontario

RE: Bryce Gerald Randall Nowlan, Applicant AND Nina Lynn Nowlan, Respondent AND Christina Lute and Craig Nowlan, Respondents

BEFORE: Justice Engelking

COUNSEL: Self-represented Applicant Kirsi Ralko, for the Respondent J. Alison Campbell, for the Respondent Grandparents

HEARD: August 7, 2024

Endorsement

[1] The Respondent, Ms. Nowlan, has brought a motion seeking an order for the return of the parties’ child, Athena Elizabeth Nowlan, born on November 25, 2015, to Renfrew County in compliance with an Order of Justice Cullen of the United States District Court for the Western District of Virginia, Harrisonburg Division, dated August 10, 2021, or in the alternative, an order that the child be transferred immediately into the care of Ms. Nowlan in Virginia.

[2] The Applicant, Mr. Nowlan, opposes Ms. Nowlan’s motion, though he did not file any materials in response to her motion. Mr. Nowlan supports that Athena temporarily remain in the care of his parents in Nova Scotia.

[3] The paternal grandparents, Christina Lute and Craig Nowlan, who were added as parties to the proceeding by consent order dated July 3, 2024, also oppose Ms. Nowlan’s motion. They have brought their own motion seeking an order that Athena reside temporarily with them in Salisbury, New Brunswick, and that she attend Salisbury Elementary School in September of 2024. They also propose certain parenting time for each of Athena’s parents.

Procedural History

[4] The history of this matter is complex. I set out the procedural history in my endorsement of June 4, 2024, as follows:

On March 10, 2020, Justice Fraser granted a temporary order on an emergency motion, in which she granted primary residence of and sole decision-making authority over the parties’ child, Athena, born November 25, 2015, to the [Applicant], Mr. Nowlan. She also ended all access between Athena and Ms. Nowlan on a temporary basis and ordered that a copy of her order be sent to the Virginia, Augusta County Juvenile and Domestic Relations District Court in Staunton, Virginia.

On August 10, 2021, Judge Cullen of the United States District Court for the Western District of Virginia, Harrisonburg Division, made a “Return Order with Conditions” directing the return of Athena to Canada from the United States pursuant to Article 12 of the UN Convention on the Civil Aspects of International Child Abduction (the Hague Convention), specifically to Petawawa, Ontario. At paragraph 5 of his order, Judge Cullen ordered that Athena was not to be removed from Renfrew County, Ontario, Canada, without an express order of the Canadian Court permitting her removal.

Judge Cullen also noted that by agreement the parties were to jointly request that the Canadian court proceed with the custody case forthwith, that it hold a status conference as soon as possible, that a summons be issued for Ms. Nowlan to attend such conference, and that it “suspend and/or vacate its Temporary Order of March 10, 2020 with respect to the parties custody and visitation rights.”

On August 23, 2021, the status conference was before Justice Fraser, who made some procedural orders regarding the anticipated hearing, and who indicated at paragraph 5: “The terms of my Temporary Order dated March 10, 2020 with respect to the parties custody and access rights (now termed decision-making responsibility and parenting time) shall be and is hereby suspended.”

Thereafter FCSRC became involved with the family and filed a protection application. The family proceeding was, therefore, stayed until the Society’s withdrawal of its application in October of 2023. The hearing which was being anticipated by Justice Fraser in her August 2021 endorsement has, thus, never been held.

In late February of 2024, Ms. Nowlan became aware via an email from Athena’s school in Renfrew County that her file was being transferred to a school in New Brunswick. It has since become clear that Athena has been living with her paternal grandparents in NB since in or about January of 2024. Mr. Nowlan did not provide notice to Ms. Nowlan of this change or obtain her consent; nor did he obtain a court order permitting the child to relocate from the Province of Ontario, as was required by the Return Order of Judge Cullen.

[5] As a consequence of learning this information, Ms. Nowlan brought her motion. The paternal grandparents, however, retained counsel and sought to be added as parties to the proceeding, which order, as I have indicated above, was made on consent on July 3, 2024.

[6] Ms. Nowlan has filed her Notice of Motion dated April 16, 2024, and two affidavits in support of her motion, one dated April 16, 2024, when the motion was first brought, and one dated July 29, 2024.

[7] Mr. Nowlan, as indicated, has not filed any materials for the motion.

[8] The paternal grandparents rely on their own Notice of Motion dated July 15, 2024, as well as affidavits of Christina Lutes sworn on May 29, 2024, and July 15, 2024.

Background Facts

[9] Ms. Nowlan is a citizen and lifelong resident of the United States. She resides in Verona, Virginia. Mr. Nowlan is a citizen and lifelong resident of Canada. The parties met online and married in Virginia after four months of dating. At the time that they met, Mr. Nowlan, who is a member of the Canadian Armed Forces, was stationed in Borden, Ontario. He was later stationed in Petawawa, Ontario.

[10] Athena Elizabeth Nowlan was born of the marriage on November 25, 2015, in Virginia. She is a United States citizen. The parties separated in late-November of 2016, when Athena had just turned one year of age.

[11] After separation, Athena lived with Ms. Nowlan, first for a brief period in New York and later in Virginia from December of 2016 to April of 2017. She then lived with Mr. Nowlan in Ontario from April of 2017 to February of 2020. Athena lived with Ms. Nowlan, again in Virginia, from February of 2020 to August of 2021. She was then returned to her father, with whom she lived until January of 2024, when she went to stay with her paternal grandparents in New Brunswick.

[12] The proceedings commenced in Ontario at the end of 2017. In 2020, Mr. Nowlan brought an urgent motion in Ontario which resulted in the aforementioned temporary order of Justice Fraser dated March 10, 2020, and he commenced a Hague Application in Virginia, which resulted in the aforementioned “Return Order” of Justice Cullen of the Court in Virginia dated August 10, 2021, requiring Athena to be returned to Petawawa, Ontario and for the “child-custody” case to be adjudicated in Canada.

[13] At paragraphs 4 through 10 of his Return Order of August 10, 2021, Justice Cullen ordered as follows:

(4) By agreement of the parties, the parties shall jointly request that the Canadian court presiding over the parties’ Canadian child-custody case (1) proceed with the parties’ custody case in Canada forthwith; (2) schedule a hearing or status conference as soon as the Canadian court’s docket permits; (3) issue a summons (or the Canadian equivalent) to the Mother requiring her attendance at the hearing or status conference; and (4) suspend and/or vacate its Temporary Order of March 10, 2020 with respect to the parties’ custody and visitation rights.

(5) Once AEN is returned to Canada, neither party shall remove AEN from Renfrew County, Ontario, Canada, without an express Order of the Canadian Court permitting AEN’s removal.

(6) The parties shall cooperate to enroll AEN in school forthwith in the Renfrew County District public school system so that AEN shall start school in Canada on the first day of school on Tuesday, September 7, 2021.

(7) The parties shall cooperate to arrange for AEN to receive therapy promptly upon AEN’s return to Canada. The therapy may include, inter alia, individual therapy, family therapy, play therapy, and reunification therapy and shall be conducted in accordance with the therapist’s treatment plan. The parties shall file a joint notice on or before Monday, August 16, 2021, confirming that a therapist has been agreed upon between the parties. In the event that the parties are unable to agree on a therapist, the Father is directed to give the Mother a list with two possible therapists, and the Mother may choose her preferred therapist from that list.

(8) The parties shall cooperate to obtain any necessary immigration documents, travel documents, or any other documents necessary for AEN’s return to Canada.

(9) Upon AEN’s return to Canada, the Father shall file a notice in this court that the minor child has been returned to Canada.

(10) This action shall be DISMISSED WITH PREJUDICE upon the filing of the Father’s Notice required by paragraph 9 of this Order. In the meantime, this court will retain jurisdiction over the matter.

[14] On August 23, 2021, Justice Fraser made the following order in Pembroke, Ontario:

1. This family court proceeding (involving decision-making responsibility and parenting time) shall proceed forthwith;

2. The trial coordinator shall forthwith schedule a case management conference date at the earliest available date;

3. A summons shall issue requiring the Respondent, Nina Lynn Nowlan, to attend on that date in person at the conference;

4. The Canada Border Service Agency or whomever else it may concern shall permit the Respondent, Nina Lynn Nowlan, to enter Canada in compliance with the Virginia Order;

5. The terms of my Temporary Order dated March 10, 2020 with respect to the parties custody and access rights (now termed decision-making responsibility and parenting time) shall be and is hereby suspended.

[15] Immediately after Athena’s return to Petawawa, however, the Family & Children’s Services of Renfrew County (“FCSRC”) commenced a protection application pursuant to the Child, Youth and Family Services Act, S.O. 2017, c.14, schedule 1, as am., which resulted in the family law proceedings under this court file number being stayed from August 30, 2021, until FCSRC withdrew their application on October 16, 2023. In the interim, Athena was placed with Mr. Nowlan pursuant to a temporary supervision order on certain terms and conditions under that Act. Paragraph 2 of Justice Fraser’s order of October 16, 2023, indicated that the protection application was being withdrawn by FCSRC “to permit the parties to continue their current application in Family court”.

[16] The net result of Justice Cullen’s order of August 10, 2021, Justice Fraser’s order of August 23, 2021, and Justice Fraser’s order in the CYFSA proceeding of October 16, 2023, is that there is currently no order regarding decision-making authority and/or parenting time if effect in Ontario.

[17] In February of 2024, Ms. Nowlan received an email from Athena’s school in Renfrew County attaching a copy of her report care from February 21st and advising: “We have adjusted our attendance to reflect her as demitted, as we have received a request for a transfer of records to Salisbury Elementary School in New Brunswick.”

[18] Notwithstanding that Ms. Nowlan had regular virtual/telephone contact with Athena, she was neither consulted nor advised by Mr. Nowlan that Athena would be transferring to a school in New Brunswick. At the time of the email from Athena’s school, Ms. Nowlan did not know if Mr. Nowlan was leaving or had left the jurisdiction of Petawawa, Ontario.

[19] Ms. Nowlan additionally noted as of February that her calls with Athena changed in that they emanated from the paternal grandmother’s phone rather than the father’s, calls were terminated abruptly when she asked about school, and frequently the paternal grandfather, rather than the father, was seen and heard in the background.

[20] Because Mr. Nowlan had been represented in the CYFSA proceedings up until October of 2023, on March 5, 2024, Ms. Nowlan’s counsel contacted Mr. Nowlan’s counsel by email to inquire if she continued to be retained by him, the response to which on the following day was no. Ms. Nowlan’s counsel then sent an email directly to Mr. Nowlan on March 8, 2024, inquiring as to the situation, to which Mr. Nowlan did not respond.

[21] Ms. Nowlan made it clear, both in her counsel’s correspondence to Mr. Nowlan in March, and in her affidavit filed in April that she was strenuously objecting to the Athena being transferred to her paternal grandparents’ care without Ms. Nowlan’s knowledge or consent.

[22] Ms. Nowlan seeks the immediate return of Athena to her care if Mr. Nowlan is not going to parent her in Renfrew County.

[23] The paternal grandparents reside in Salisbury, New Brunswick. Ms. Lutes is the common law partner of Mr. Craig Nowlan, who is the father of Bryce Nowlan. According to Ms. Lutes, Athena has been in her and Craig Nowlan’s care since January of 2024.

[24] Ms. Lutes has deposed that Bryce Nowlan lives with his girlfriend, Nicole, in Chapeau, Quebec, which is a village across the Ottawa River not far from Pembroke, Ontario. She deposes further that Bryce Nowlan learned in July of 2023 that he would be temporarily posted in Meaford, Ontario, approximately 5.5 hours from Petawawa. According to Ms. Lutes, Bryce Nowlan did not think it would be in Athena’s best interests to travel to Meaford with him, or to stay with his girlfriend in Chapeau in his absence. Ms. Lutes and Craig Nowlan agreed that Athena could live with them between January and June to finish out her school year while Bryce Nowlan was stationed in Meaford.

[25] Ms. Lutes states that she and Mr. Craig Nowlan believed that Bryce Nowlan had sole decision-making authority over Athena and could make the decision that Athena live with them for that period of time. They nevertheless requested that Bryce provide them with “a copy of the court documents showing that he had sole custody as well as a document confirming that we would have temporary guardianship of Athena while he was posted”, neither of which were ever forthcoming.

[26] Ms. Lutes and Craig Nowlan picked up Athena in Ottawa on January 18, 2024, and returned to New Brunswick with her. Once there, they discovered that Athena had some behavioural and developmental issues of which they were unaware when they agreed for Athena to come and live with them. Although their original agreement with Bryce Nowlan was that Athena would remain with them to the end of the school year, Ms. Lutes and Craig Nowlan have since agreed with Bryce that Athena should remain in their care indefinitely. This agreement is, of course, without the input and/or consent of Ms. Nowlan.

[27] Ms. Lutes describes Athena as a wonderful, kind and loving child who presents with several challenges. She can be confused, angry and reactive, and she has difficulties at school due to what Ms. Lutes describes as “undiagnosed learning challenges”.

[28] After an unsuccessful attempt at home schooling, and a very brief stint (a day and a half) in a small private school, Athena was enrolled in and began attending Salisbury Elementary School, which proved to be a better fit for her. Ms. Nowlan was not consulted on any educational decisions for Athena, nor did she provide her consent.

[29] An Independent Education Plan (“IEP”) was completed for Athena on April 24, 2024, and the grandparents and school personnel worked together to implement its’ recommendations. Athena had many accommodations at school. Additionally, Athena received support from the school counsellor, Behaviour Intervention Mentor (“BIM”), a resource teacher, educational assistant and her classroom teacher. Athena completed Grade 3 at Salisbury Elementary School in June of 2024.

[30] Athena also commenced therapy with a counsellor, Jodi Stilwell, in February. Ms. Stilwell provided a letter dated April 18, 2024, and a letter dated July 10, 2024, attached as exhibits to Ms. Lutes’ affidavits of May 29 and July 15, 2024, respectively. Ms. Nowlan was not consulted regarding engaging Athena in counselling, nor did she provide her consent (though she agrees counselling is appropriate).

[31] Ms. Lutes has noted improvements in Athena’s overall behaviour and well-being, as has her school, as can be noted by Athena’s end of year report card. Ms. Lutes, nevertheless, remains very concerned about Athena, and about what she has experienced to date. It is her view that Athena requires stability, structure and routine, all of which she submits she and Craig Nowlan provide.

[32] Ms. Lutes and Craig Nowlan’s position is that neither parent has provided Athena what she needs to feel secure and to succeed. Rather, both have exposed Athena to relentless conflict and trauma. While they support that Athena should someday return to the care of one of her parents, the position of Ms. Lutes and Craig Nowlan is that now is not the time. To their view, Athena is finally now receiving access to highly needed services through her school and her counsellor, and is, perhaps for the first time in her life, experiencing some measure of security and stability. They, thus, seek a temporary order permitting Athena to remain in their care and continue to attend school in Salsibury.

Analysis

[33] This motion is governed by Section 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am. Subsection 16(1) provides that when making a parenting order, the court shall take into consideration only the best interests of the child. Subsection 16(2) provides that primary consideration shall be given to the child’s physical, emotional and psychological safety, security and well-being when the court is considering the best interests factors enumerated in subsection 16(3).

[34] Pursuant to subsection 16.1(2), the court may make an interim order for the exercise of parenting time or decision-making responsibility in respect of a child of the marriage on application by either of the spouses or a person who stands in the place of or intends to stand in the place of a parent. Pursuant to subsection 16.1(7), the court may, in that order, authorize or prohibit the relocation of a child.

[35] Pursuant to subsection 16.8(1) a person who has parenting time or decision-making authority and intends to change the place of residence of a child shall notify the other parent of that intention in the prescribed manner. Pursuant to subsection 16.9(1) a person who has parenting time or decision-making authority and intends to undertake a relocation shall at least 60 days in advance notify the other parent of that intention in the prescribed manner.

[36] Ms. Nowlan argues that Mr. Nowlan is in breach of paragraph 5 of Justice Cullen’s order of August 10, 2021, which provides that after Athena’s return to Renfrew County, neither party was to remove her from same without an express Order of the Canadian Court permitting her removal. Ms. Nowlan also submits that Mr. Nowlan has failed to comply with either subsection 16.8(1) regarding a change of residence of Athena or subsection 16.9(1) regarding a relocation of the child. She submits further that the paternal grandparents should not be permitted to plead innocence or ignorance in accepting or participating in that relocation and/or in engaging Athena in services and programs without consulting with her or obtaining her consent.

[37] With respect to her first argument, it is not obvious to me that Justice Cullen’s August 10, 2021, order continues to be applicable. My reasons for this are that: a) the Superior Court of Justice of Ontario clearly resumed jurisdiction over the matter as of August 23, 2021, the date of Justice Fraser’s order; b) at paragraphs 9 and 10, Justice Cullen’s order included a mechanism for dismissing the application/action in Virginia; c) Justice Cullen only retained jurisdiction pending that dismissal; and d) the dismissal occurred, as Ms. Nowlan has since attempted, unsuccessfully, to “reopen” the case in Virginia, as is evinced by Justice Cullen’s decision dated July 11, 2024 and contained at Exhibit “B” to the affidavit of Ms. Lutes sworn on July 15, 2024.

[38] However, regardless of whether paragraph 5 of Justice Cullen’s order of August 10, 2021, continues to be in play, there is no doubt in this case that Mr. Nowlan did not comply with subsection 16.9 of the Divorce Act. Not only did Mr. Nowlan not provide notice of the intended relocation of Athena from Ontario to New Brunswick, he also did not even respond to Ms. Nowlan’s inquiries regarding the situation.

[39] While it is not unreasonable for Mr. Nowlan to believe that he had decision-making authority over Athena, whom had been living with him since August of 2021, it was unreasonable of him to believe that he had sole decision-making responsibility over her. The only order made that had ever granted sole decision-making authority to Mr. Nowlan was the temporary order of Justice Fraser dated March 10, 2020, which was very clearly suspended (ended) by virtue of her order dated August 23, 2021, after Athena’s return to Canada.

[40] Ms. Nowlan, moreover, was having regular virtual contact with Athena before and after her move. Mr. Nowlan was aware of Ms. Nowlan’s contact information and whereabouts. Additionally, according to Ms. Lutes, Mr. Nowlan was aware from at least July of 2023 that he would be going to Meaford in the new year. Indeed, he was aware of this before the CYFSA proceedings were terminated on October 16, 2023, a court date at which both he and Ms. Nowlan were present, he with his then counsel and her virtually. Mr. Nowlan ought to have been consulting with Ms. Nowlan about what solution would be best for Athena upon his own relocation to Meaford, and if they did not agree on same, he ought to have brought his own motion on notice to her seeking an order authorizing him to relocate the child. He did not do so. Rather, without legal authority, and without either consulting with or seeking the consent of the other person with parenting time and decision-making responsibility over Athena, Mr. Nowlan agreed with his parents to relocate Athena to New Brunswick. Mr. Nowlan engaged in what is commonly referred to as “self-help”, which is not condoned by this Court. That he did so, moreover, in the face of an open file and on-going family litigation, defies comprehension.

[41] I concur with Ms. Nowlan’s submission that, if Justice Cullen’s order is still valid, Mr. Nowlan is in breach of it, and Mr. Nowlan has failed to comply with subsection 16.9 of the Divorce Act.

[42] While I also find that it is not unreasonable for Ms. Lutes and Craig Nowlan to believe that Mr. Nowlan had legal authority to transfer Athena to their care, the fact that nobody discussed this proposal with Ms. Nowlan remains highly problematic. Ms. Lutes and Craig Nowlan’s persistent pattern of making decisions for Athena without legal authority or the consent of Ms. Nowlan is equally problematic. Again, this complete disregard for Ms. Nowlan’s rights is occurring in the face of ongoing family litigation.

[43] Regarding Athena’s best interests, Ms. Lutes and Craig Nowlan submit that it would not be in Athena’s best interests to be returned to her mother. They submit that a) Ms. Nowlan’s parenting is inadequate, b) Athena is experiencing stability and security in their care, and c) returning Athena to her mother’s care is not in keeping with her expressed views and preferences.

[44] In her July 15, 2024, affidavit, Ms. Lutes relies on references from a decision in Virginia, Nowlan v. Nowlan 543 F. Supp. 3d 324 (W.D. Va 2021) relating to events in 2017, and an “Assessment Summary” dated July 12, 2018, to support that Ms. Nowlan’s parenting is inadequate. Ms. Lutes points to recommendations made by the Virginia CPS that Ms. Nowlan’s access to Athena remain supervised until she fulfilled the following: (1) complete a psychological evaluation and adhere to all mental health and substance abuse recommendations; (2) attend local Alcoholics Anonymous meetings (or other treatment for alcohol abuse); and (3) attend a parenting class. She also points to the Assessment Summary assessing the risk level of Ms. Nowlan as “high”. However, both documents predated Athena subsequently living with Ms. Nowlan for a year and a half, from February 2020 to August 2021. Indeed, they relate to a time when child protective services in Virginia were involved with Ms. Nowlan, and in fact, at page 7, the decision confirms Ms. Nolwan’s contention that she voluntarily placed Athena with Mr. Nowlan in the spring of 2017 due to that involvement, albeit with the expectation that Athena would be returned to her once her situation improved.

[45] It appears that Ms. Nowlan may have taken the return of Athena into her care into her own hands in February of 2020, which prompted Mr. Nowlan’s urgent motion in Ontario and his Hague application in Virginia. Regardless, the reasons for return of Athena to Canada in August 2021 by Justice Cullen relate not to any inadequacies in Ms. Nowlan’s parenting (expect for the references to both parents’ being engaged in damaging levels of high conflict), but to the appropriate jurisdiction for the matter to be adjudicated pursuant to the Hague Convention. Indeed, Athena was not ordered returned to Mr. Nowlan’s care; she was ordered to be returned to Renfrew County, either with Ms. Nowlan, or for Mr. Nowlan to collect her if Ms. Nowlan would not (or could not) travel to Canada. Additionally, Ms. Nowlan indicates that during the February of 2020 to August of 2021 timeframe, Virginia child protective services had no concerns with her parenting. The Applicant and Respondent grandparents have not provided any evidence to the contrary.

[46] The paternal grandparents also rely on the following comments of Justice Cullen in Nowlan v. Nowlan, United States District Court for the Western District of Virginia Harrisburg Division, June 10, 2021, 543 F. Supp. 3d 324 (W.D. Va. 2021) in support of their position that Athena should not be returned to Ms. Nowlan’s care:

This proceeding is the culmination of years of protracted litigation, both in the United States and Canada. It is also the latest in a tragic series of events arising from the toxic relationship between two parents that has led to the upheaval of their young child’s life. Both parents have histories of drug and alcohol abuse, domestic violence, and alleged infidelity. These issues – and the parents’ hatred of each other - have adversely affected their child (“AEN”). If nothing else, this proceeding is an indictment, and hopefully a wake-up call, to show the parents that if they persist in this destructive behaviour, AEN alone will suffer the consequences. (Emphasis is original)

[47] However, neither the grandparents nor Mr. Nowlan have provided this Court with any evidence of a) ongoing drug or alcohol abuse by Ms. Nowlan, b) ongoing instances of domestic violence relating to Ms. Nowlan, or c) persistent destructive behaviour of the nature described by Justice Cullen on the part of Ms. Nowlan. The grandparents have insinuated in their materials and submissions that Ms. Nowlan’s recent attempt to reopen the case in Virginia, and her focus on the Applicant and grandparents’ breaches of Justice Kaufman’s April 23, 2024, order (discussed below), including by calling repeatedly when her calls were not answered, are indicative of Ms. Nowlan’s penchant towards high conflict. However, Mr. Nowlan and the grandparents have ignored Ms. Nowlan concerns, and her resort to insisting on her rights not being violated, or seeking legal remedies in this context cannot be seen, in my view, as exemplifying the “toxicity” to which Justice Cullen referred. Indeed, the only example provided to me of that kind of destructive behaviour was Ms. Nowlan stating that Mr. Nowlan was telling Athena that she could not go trick or treating at Halloween in 2023 because she was required to have a call with Ms. Nowlan, even though Ms. Nowlan repeatedly stated to him that she was prepared to make an exception for Halloween.

[48] There is, thus, no current evidence before this court which would suggest that Ms. Nowlan is not capable of providing appropriate care to Athena.

[49] In relation to Ms. Lutes and Craig Nowlan’s second argument, that they are providing badly needed services to Athena, and she is finally experiencing a measure of stability and security, Ms. Nowlan’s evidence is that before the August 10, 2021, decision of Justice Cullen, Athena was engaged in play therapy with a licenced therapist, Laurie Thomas. Moreover, she indicates that pursuant to Justice Cullen’s order, she and Mr. Nowlan were to agree upon a counsellor in Renfrew County, which she did as per the process set out by Justice Cullen, and Mr. Nowlan did not follow through with it. Ms. Nowlan is more than willing to again arrange counselling for Athena in Virginia.

[50] Additionally, with respect to the challenges that Athena is noted to have at her grandparents’ home and at school, Ms. Nowlan noted that no such challenges existed while Athena was in her care. She attached as Exhibit “C” to her July 29, 2024, reply affidavit a letter from Athena’s original school in Virginia, Edward G. Clymore Elementary, confirming same. The grandparents submit that Athena was very young during the 2020-2021 school year, and while her challenging behaviours may not have been as apparent at the time, they have since become so. Nevertheless, they do not appear to have been present while Athena was in the care of her mother.

[51] Ms. Nowlan indicates that Athena can return to Stuarts Draft Elementary School in Stuarts Draft, Virginia, at which she was enrolled to attend when the return order was granted. As indicated, she is also prepared to reengage a suitable therapist for Athena.

[52] Ms. Nowlan also indicates that Athena will have a pediatrician at UVA Augusta Health Pediatrics, as well as dental care, for all of which Ms. Nowlan receives coverage through her veteran’s benefits. This is significant, as Ms. Lutes has pointed out that Athena remains without healthcare coverage in Canada. Notwithstanding that Athena has been in the care of Mr. Nowlan since August of 2021, he has not yet obtained Canadian citizenship for her, which was required for her to obtain OHIP coverage while living in Ontario. Ms. Lutes asserts that she and Craig Nowlan can secure a NB Medicare Card for Athena only after she is confirmed to be entitled to OHIP. In the interim, they have had to pay out of pocket for dental and medical services for Athena.

[53] That Mr. Nowlan has not secured healthcare coverage for Athena in three years is exceedingly concerning. (Parenthetically, this issue appears to have also been present when Athena was in Mr. Nowlan’s care from 2017 to 2020). Also concerning are Mr. Nowlan’s failure to obtain counselling for Athena, his failure to involve Athena’s mother in decisions concerning her, his failure to facilitate in person parenting time for her with Ms. Nowlan, and his failure to protect her from what appears to be a less than ideal situation in the home of his girlfriend, as described by both Ms. Nowlan and Ms. Lutes. Although it is very likely that the conflict between Ms. Nowlan and Mr. Nowlan has negatively impacted Athena, it is just as likely, in my view, that she has also been impacted by these failures on the part of Mr. Nowlan over the past three years.

[54] Indeed, unlike with Ms. Nowlan in 2020-2021, child protection authorities in Ontario remained involved with Mr. Nowlan for almost the entire period Athena was in his care after her return to Canada. In fact, as indicated above, FCSRC withdrew their protection application only in October of 2023, in part to allow the parties to get on with their family litigation. From that time, Ms. Nowlan has been requesting a return of Athena to her care, a request which has been ignored by Mr. Nowlan, and after him, Ms. Lutes and Craig Nowlan.

[55] While I accept Ms. Lutes’ evidence that Athena is now experiencing a measure of stability and receiving some necessary services, I have no evidence that Ms. Nowlan would not be in a position to provide same, or that she would not have been in a position to provide same in January of 2024.

[56] With respect to the position of Ms. Lutes and Craig Nowlan that Athena does not want to go to Virginia or be in the care of her mother, they point to two factors. The first is that Athena has not seen her mother in person since the fall of 2022, and the second is that Athena has made certain statements to Ms. Lutes and to Ms. Stilwell about her mother or Virginia.

[57] In relation to the first, Ms. Nowlan acknowledges that the last in-person parenting time she had with Athena was via a visit arranged with the assistance of FCSRC in fall of 2022. She indicates that this is in part due to the involvement of FCSRC and because after their withdrawal, neither Mr. Nowlan, nor Ms. Lutes and Craig Nowlan have made any efforts to arrange for her to have in-person parenting time with Athena. Ms. Nowlan indicates additionally that it is difficult for her to travel to Canada due to a historical charge of impaired driving from before she even met Mr. Nowlan. She asserts, moreover, that all parties are aware of this fact. Despite this, in person parenting time has never been offered to her to occur in the United States.

[58] Notwithstanding that Ms. Nowlan has not visited with Athena in person for almost two years, however, she indicates that during the FCSRC involvement with her family, she had twice daily telephone calls with Athena, before and after school. Additionally, on April 23, 2024, Justice Kaufman made an order in this proceeding that Ms. Nowlan was to continue to have daily phone calls with Athena at 6:30 p.m. Mr. Nowlan was present for this appearance before Justice Kaufman, and was, in fact, requesting an adjournment of Ms. Nowlan’s motion to retain counsel. Notwithstanding this, in her July 15, 2024, affidavit, Ms. Lutes states that she and Craig Nowlan, for reasons unexplained, only became aware of Justice Kaufman’s April 23, 2024, order on May 28, 2024. In the intervening period, they unilaterally reduced the calls to twice a week. Indeed, Ms. Nowlan served Mr. Nowlan with a Notice of Contempt Motion in relation to these calls, which have since been reinstated for the most part. Ms. Nowlan’s contempt motion has also since been withdrawn.

[59] Ms. Lutes’ evidence is that Athena finds the daily calls to her mother “annoying”, and that she often does not want to talk to her because she has little to say. Ms. Lutes and Craig Nowlan purported to rely on a recommendation from Ms. Stilwell in her April 18, 2024, letter that calls occur two or three times per week. According to Ms. Lutes and Ms. Stilwell, when calls occur nightly, Athena feels forced to talk to her mother.

[60] Ms. Nowlan’s evidence is that when Ms. Lutes creates a conducive environment for the calls with Athena, such as when she can paint or draw at the table while talking to her mother, Athena has no issue with being on the call for 30-40 minutes. However, Ms. Nowlan indicates that the grandparents more often treat the calls as an obligation or chore that Athena must do before she can do anything else, and this makes it less than a positive experience for her. In these circumstances, it does not surprize her that Athena may describe the calls as annoying. However, Ms. Nowlan asserts that having daily calls with Athena has been a long-established status quo, which did not cause issues for Athena prior to the grandparents interfering in it.

[61] Ms. Lutes again relies on 2017 and 2018 information to justify why visits have not been arranged for Athena with Ms. Nowlan in the United States and refers to her own concern that Ms. Nowlan will refuse to return Athena to Canada when required. Ms. Lutes references Ms. Nowlan’s attempt to reopen the Virginia litigation in support of this fear. However, Ms. Nowlan readily acknowledges that she has attempted to reopen the litigation in Virginia, albeit unsuccessfully, precisely because Mr. Nowlan failed to comply with the return order of Justice Cullen of August 10, 2021, regarding no relocation of the child without a court order. This effort, does not in my view, lend credence to the suggestion that Ms. Nowlan would not return Athena to Canada, if required, by an order of the Superior Court of Justice of Ontario, which continues to retain jurisdiction in this matter.

[62] Ms. Lutes also relies on what she characterizes as Athena’s views and preferences. In her July 15, 2024, affidavit, Ms. Lutes included the following information:

• Paragraph 62 – “Athena has said to me on several occasions that she does not like her mother because she made her think her father was a villain and he’s not.”
• Paragraph 63 – “Athena has expressed significant hesitation in spending time with her mother. One of her concerns is that she won’t be returned to Canada.”
• Exhibit “E” – Letter of Jodi Stilwell dated July 10, 2024: “When asked about going to visit Mommy sometime this summer in Virginia, she [Athena] said “No way ever to Virginia. I don’t want to go back! I just don’t want to.”

[63] Section 16(3) provides that when determining a child’s best interests, one of the factors the court is to consider is “(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.” I would not conclude in this instance that Athena’s views and preferences cannot be ascertained. However, I would conclude that they have not been ascertained. First, the information contained in all three above references is hearsay. In the first two instances, no direct quotes of statements uttered by Athena have been provided. In the third instance, although directly quoted, no effort to establish that the child hearsay statement is necessary and reliable has been made. None of the statements (or purported statements), in my view, can be admitted for the truth of their contents. At best, the latter direct statement of Athena may be admissible under the state of mind exception to the rule against hearsay.

[64] Second, Athena is currently eight years of age, turning nine in November. She has not lived with Ms. Nowlan for three years, since August of 2021. She has not had a in-person visit with her in almost two years, since the fall of 2022, and for reasons unknown, she has not had any visits with Ms. Nowlan at her home since the Hague Convention decision was rendered, and it was well established that Ontario had jurisdiction over the matter. I am not convinced that Athena’s purported aversion to “Virginia” is well-founded. I am also uncertain why Athena would have a concern “that she won’t be returned to Canada”, unless someone has told her she should have this concern. In the face of a court order, Athena was, in fact, returned to Canada. Athena was only four years old at the time, however, and presumably would have little or no personal knowledge of whether she was being inappropriately or illegally prevented from returning to Canada. Ms. Nowlan has indicated, additionally, that Athena’s Guardian-ad-Litem in Virginia, Mr. Eric Swortzel, can ensure that any order made in Ontario requiring Athena to travel to Canada can be validated or mirrored in Virginia to ensure that there is no concern about Athena returning, if and when required.

[65] Third, Athena is not only young, but given the challenges in her behaviours as described by Ms. Lutes, Athena’s level of maturity may not even be commensurate with her age. This is a girl who has not been able to spend time in Ms. Nowlan’s care. It is not surprizing to me that Athena is happy to be with her grandparents, given what she has either lacked or been exposed to in the care of her father over the past three years. She does not, however, know, what her mother currently can offer to her.

[66] Fourth, given the history of high conflict and toxicity in this case, it is impossible to conclude that Athena’s views and preferences, as purportedly set out by Ms. Lutes, are her own. Athena was in the exclusive care of Mr. Nowlan from August of 2021 to January of 2024, and then in exclusive care of Ms. Lutes and Craig Nowlan from January of 2024 to present, notwithstanding her mother’s attempts to have her return to her care since FCSRC’s withdrawal in October of 2023, which has been delayed through no fault of her own. While I am uncertain as to what Athena has learned in the past four years about how she is to view her mother, I suspect that it is not positive. In any event, based on the materials before me, I cannot conclude that Athena’s views are independently formed and held.

[67] I recognize that yet another move for Athena will be difficult for her. At paragraph 79 of her affidavit sworn on May 28, 2024, Ms. Lutes stated: “Our goal is not to separate her from either one of her parents. Our goal is to act in her best interest and give her the environment she needs until either or both of her parents can get this [sic] lives straightened out, so they can be the responsible parents and caregivers that Athena needs.” Yet, no evidence has been presented by the Respondent grandparents which demonstrates that Ms. Nowlan has not “straightened our” her life. Nor has any evidence been provided which demonstrates that Ms. Nowlan was not giving Athena the care that she needed between March of 2020 and August of 2021.

[68] The section 16(3) of the Divorce Act factors to consider when determining a child’s best interests include the child’s need for stability, the nature and strength of her relationships with her parents and grandparents, the parents’ ability to support and promote the child’s relationship to the other parent, the child’s history of care, each person’s ability to provide care and meet the child’s needs, and the ability and willingness of those persons to communicate and cooperate.

[69] While Athena is thought to have a good relationship with Mr. Nowlan, he has effectively abdicated all responsibility for her at present. On the record before me, one to which he has chosen not to respond, Mr. Nowlan has shown little ability to promote Athena’s relationship with Ms. Nowlan or to communicate and cooperate with her for the sake of the child. He has also shown little ability to properly care for and meet the child’s needs. Athena also has a close relationship with Ms. Lutes and Craig Nowlan. However, despite their stated aim of having Athena someday return to the care of one of her parents, they too have shown little ability to promote and support Athena’s relationship with Ms. Nowlan, and no ability to communicate and cooperate with her when making decisions for Athena.

[70] As indicated, while Athena’s relationship with Ms. Nowlan has suffered from a lack of opportunity to spend meaningful time with her since her return to Canada, Athena knows her mother well and speaks to her very frequently (daily), albeit sometimes begrudgingly. Athena’s history of care, moreover, includes not insignificant periods in the care of her mother. Indeed, some of the materials relied on by Ms. Lutes and Craig Nowlan reference Athena wanting to return to her mother after she’d gone to live with her father in 2017.

[71] Ms. Nowlan indicates that she is prepared to have Athena visit either Mr. Nowlan or Ms. Lutes and Craig Nowlan as regularly as Athena wishes or the court may order. She also indicates that her mother, with whom Athena is familiar from her time in Ms. Nowlan’s care, is prepared to assist in transferring Athena across the border for such visits. The evidence confirms that it was, in fact, Ms. Nowlan who voluntarily had Athena placed with Mr. Nowlan in 2017 when she was struggling. Ms. Nowlan also cooperated with the Return Order of Justice Cullen in 2021, and there is no evidence that she would not follow whatever order is made by this court. In these circumstances, it seems more likely that Mr. Nowlan will be able to exercise more meaningful parenting time and the grandparents more meaningful contact with Athena than Ms. Nowlan was ever afforded by them.

[72] Ms. Nowlan’s plan of care as set out in her affidavit sworn on July 29, 2024, addresses the same issues as does Ms. Lutes’ affidavit of July 15, 2024. Specifically, Athena will attend Stuarts Draft Elementary School in Stuarts Draft, Virginia. Ms. Nowlan will obtain counselling services for Athena with a licenced therapist. Athena will have a pediatrician at UBA August Health Pediatrics. She will participate in recreational activities, including swimming, in which she participates in New Brunswick. Athena will also have the support of her maternal grandmother, Loretta Peters and her husband, David Peters, with whom she and Ms. Nowlan will be living, and from whom she has received support in the past.

[73] In her Notice of Motion dated April 16, 2024, Ms. Nowlan seeks the following relief:

3. An Order for the immediate return of the child, Athena Elizabeth Nowlan, born November 25, 2015 to Renfrew County pursuant to the requirements of the existing Order of Justice Cullen dated August 10, 2021;

4. In the alternative to paragraph 2, above, if the Applicant Father no longer resides in Renfrew County, an Order that the child be transferred to the temporary care and control of the Respondent Mother pending further Order of the Court.

[74] As indicated above, Mr. Nowlan has not participated in this motion, except to state that he supports the position of Ms. Lutes and Craig Nowlan. Although Ms. Lutes indicates in her affidavit sworn on May 29, 2024, that Mr. Nowlan “currently lives with his girlfriend in Chapeau, Quebec” (incidentally also not in Renfrew County, and for which “change of place of residence”, I have no evidence he provided notice of to Ms. Nowlan pursuant to subsection 16.8(1) of the Divorce Act), at the time of the motion, he was not present in Renfrew County. Additionally, in his “Petitioner’s Brief in Response to Motion to Re-Open” filed in the United States District Court for the Western District of Virginia (Harrisonburg Division) on June 26, 2024, in response to Ms. Nowlan request to reopen the case there and attached at Exhibit “A” to Ms. Lutes affidavit sworn on July 15, 2024, Mr. Nowlan indicates that he has been promoted to Master Corporal and he has “received word that it is likely he will be deployed in the latter part of 2024 as part of the Canadian Response Unit to serve a tour of duty in Latvia”. Paragraph 6 of that brief reveals that Mr. Nowlan has been engaged in advanced weapons training and emergency response medical training for his “anticipated deployment to Latvia.” Mr. Nowlan did not provide this information to this Court; nor did Ms. Lutes directly. Only by thoroughly reading the exhibits to her affidavit did it come my attention. Regardless, Ms. Nowlan’s first head of relief is not, therefore, an option.

[75] For the reasons provided herein, I find that it is in the best interests of Athena to grant an order for Ms. Nowlan’s alternative relief. On a temporary basis, pending the final order of this Court regarding decision-making authority and parenting time, Athena’s primary residence shall be with Ms. Nowlan.

[76] There shall also be an order for parenting time with Mr. Nowlan, both virtual and in person, as well as a contact order for the paternal grandparents, also both virtual and in person. However, given the logistical arrangements which will be necessary to put in person visiting into effect, I will give the parties an opportunity to discuss what is possible and hopefully arrive at a consent draft order. If they are not successful in doing so, I will receive written submissions on the issue and render a decision.

Order

[77] There shall be a temporary with prejudice order as follows:

1. Athena Elizabeth Nowlan, born on November 25, 2015, shall be placed in the primary care of the Respondent Mother, in Verona, Virginia, by no later than September 14, 2024, or for logistical reasons, on another date expressly agreed to by the parties in writing.

2. The Applicant Father or the Respondent Paternal Grandparents, Christina Lutes and Craig Nowlan, shall transport Athena to Verona, Virginia, or to a border location to be agreed upon by the parties for the transfer of the child to the care of the Respondent Mother.

3. The Applicant Father and the Respondent Paternal Grandparents shall speak positively of the move to the child and shall support her transition to the Respondent Mother’s care.

4. The Applicant Father shall provide whatever documents are necessary for the child to travel into the United States of America.

5. The Superior Court of Justice of Ontario retains jurisdiction over this matter. The parties shall proceed to a further Settlement Conference in light of the relocation of the child, and to a trial of the main application as soon as possible.

6. The child, Athena, shall be enrolled in and attend Stuarts Draft Elementary School in Stuarts Draft, Virginia.

7. The Respondent Mother shall ensure that Athena is registered to receive medical services from UBA August Health Pediatrics.

8. Neither the child’s school nor medical practitioner shall be changed without the express written consent of both parents or a further order of this Court.

9. The Respondent Mother shall seek out counselling services for Athena once she is settled in Virginia. Once a counsellor is identified, the Respondent Mother shall consult with the Applicant Father and obtain his consent for such counselling.

10. The Applicant Father and Respondent Mother shall consult on any other decision affecting the child, and jointly make said decision.

11. The Applicant Father, Respondent Mother and Respondent Paternal Grandparents shall not speak negatively of one another either to the child or within the presence of the child.

12. There shall be an order for in-person parenting time for the Applicant Father and in-person contact by the Respondent Grandparents. Given the logistical issues involved and given that the Applicant Father’s availability to exercise same is unknown, the parties shall attempt to agree on a draft consent order for same. If the parties are unable to agree on a draft consent order by September 13, 2024, they may make written submissions within five days of that date on the issues of the Applicant Father’s in-person parenting time and the Respondent Paternal Grandparents in-person contact and I will make an order.

13. Written submissions on costs for the motion may be provided on 10-day intervals from either September 13, 2024, if there is a draft consent order on parenting time and contact, or from the date I render a decision on those issues.

Released: September 6, 2024 Engelking J.