Court File and Parties

COURT FILE NO .: FC-25-310-0001

DATE: 2026-02-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zimil Patel, Applicant

AND:

Hiral Bhatt, Respondent

BEFORE: Justice D. Piccoli

COUNSEL: Mark A. Simpson, Counsel for the Applicant

Ravinder Mann, Counsel for the Respondent (H. Dhaliwal, attending as agent)

HEARD: February 12 and 13, 2026

ENDORSEMENT

1 . This is an Application brought by the Applicant, Zimil Patel (the “father”), under the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35 (the “Convention”) for an order directing the return of the parties’ daughter, Yavi Patel, born August 13, 2024 (the “child”), to Ohio, United States. The Application was issued on February 5, 2026, and served at 7:41 p.m. As such, service was effective on February 6, 2026. 2 . The Respondent, Hiral Bhatt (the “mother”), opposes the return of the child and asserts that her habitual residence is Kitchener, Ontario. She answered father’s Hague Application on February 10, 2026, and served him that day. She previously commenced an Application in this court seeking relief including parenting orders. That Application was dated October 17, 2025, issued November 27, 2025, and served on the father on December 10, 2025. Part 1 – Preliminary Issues 3 . The parties agreed before me on January 30, 2026, that the matter would proceed virtually and by affidavit evidence with the right to cross-examine. Timelines for the Application were set, including the hearing dates of February 12 and 13, 2026. 4 . At the request of Justice Wood from the Ohio court, Justice Wood and the parties convened before the court on February 3, 2026, to discuss timelines and process in this court. 5 . The parties appeared before Justice Tweedie for a settlement conference on February 5, 2026, and timelines were extended. On consent, the parties agreed to provide expert reports regarding immigration issues by February 10, 2026. 6 . The parties agree that the child was removed from Ohio on April 24, 2025. They do not agree as to whether the removal was wrongful. 7 . The parties agree that as of April 24, 2025, the father was exercising his rights to custody. 8 . The court considered the following for this hearing: (a) The pleadings of each party; (b) The Affidavit of father, dated February 6, 2026; (c) The Affidavit of mother, dated February 10, 2026; (d) The oral evidence of both parties, given on February 12, 2026; (e) The expert reports provided by both parties relative to immigration issues in the United States. Namely, the report of Lori Pinjuh, of February 9, 2026, and, further, letter of February 12, 2026 – the father’s expert, and the report of Tahreem Kalam, dated February 10, 2026 – the mother’s expert. Both expert reports were accepted on consent. (f) The oral evidence of Ms. Pinjuh, the father’s expert, given on February 12, 2026. The mother chose not to call her expert. (g) Statement of Agreed Facts (Exhibit 1) dated February 13, 2026. Part 2 – The Law A. Objectives of the Hague Convention 9 . Canada and the United States are both Contracting States to the Convention. The objects of the Convention are stated in Article 1 as follows: A. To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and B. To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State. 10 . The purposes of the Convention were described by the Ontario Court of Appeal in Ludwig v. Ludwig , 2019 ONCA 680 , at paras. 19 and 20 : [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: [ Office of the Children’s Lawyer v. Balev, 2018 SCC 16 , [2018] 1 S.C.R. 398], 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. B. Relevant Provisions of the Convention 11 . The Articles of the Convention relevant to this case are 1, 3, 5, 8, 12, 13 and 14. 12 . These articles are as follows (Article 1 is referenced above): Article 3 The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 5 For the purposes of this Convention – a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. Article 8 Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. The application shall contain – a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child; b) where available, the date of birth of the child; c) the grounds on which the applicant's claim for return of the child is based; d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by – e) an authenticated copy of any relevant decision or agreement; f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State; g) any other relevant document. Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 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; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence. Article 14 In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable C. Analytical Framework 13 . The Ontario Court of Appeal in Ludwig sets out the analytical framework for Convention Proceedings, summarized at paragraph 40. The relevant provisions of paragraph 40 to his case are: [40] … Stage One: Habitual Residence

1. On what date was the child allegedly wrongfully removed or retained?
2. Immediately before the date of the alleged wrongful removal or retention, in which jurisdiction was the child habitually resident? In determining habitual residence, the court should take the following approach: a) The court’s task is to determine the focal point of the child’s life, namely the family and social environment in which its life has developed, immediately prior to the removal or retention. b) To determine the focal point of the child’s life, the court must consider the following three kinds of links and circumstances: i) The child’s links to and circumstances in country A; ii) The circumstances of the child’s move from country A to country B; and iii) The child’s links to and circumstances in country B. c) In assessing these three kinds of links and circumstances, the court should consider the entirety of the circumstances, including, but not restricted to, the following factors: i) The child’s nationality; ii) The duration, regularity, conditions and reasons for the child’s stay in the country the child is presently in; and iii) The circumstances of the child’s parents, including parental intention. End of Stage One: Two Outcomes
3. If the court finds that the child was habitually resident in the country in which the party opposing return resided immediately before the alleged wrongful removal or retention, then the Hague Convention does not apply, and the court should dismiss the application.
4. If the court finds that the child was habitually resident in the country of the applicant immediately before the wrongful removal or retention, then the Hague Convention applies, and the court should proceed to stage two of the analysis. At the end of Stage one, the court shall return the child to her habitual residence unless it determines one of the exceptions apply. Stage Two: Exceptions At this stage, the court shall order the return of the children unless it determines that one of the following exceptions applies:
5. The parent seeking return was not exercising custody or consented to or acquiesced in the removal or retention (Article 13(a)).
6. 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)). Part 3 - Summary of Decision 14 . For the reasons set out below, I make the following findings: a. The date of the child’s removal was April 24, 2025, as agreed between the parties. The removal was wrongful as defined by the Convention and the caselaw. b. The removal was in breach of rights of custody attributed to the father under the laws of the State of Ohio. c. The father, as agreed between the parties, was exercising custody rights at the time of the wrongful removal of the child. d. The child’s habitual residence at the time of the wrongful removal was the State of Ohio. e. The father did not consent or acquiesce to the removal of the child. f. There is no grave risk that return to Ohio would expose the child to physical or psychological harm or place the child in an intolerable situation. g. The child shall be returned to Ohio. 15 . The father shall be subject to undertakings which he proposed during submissions, and which are attached to this decision. Part 4 - Background Facts 16 . The father is 34 years of age. He is an Indian citizen with permanent residency status in Canada. In 2024, he acquired an L-1A visa to work in the United States (U.S.) which is valid until January 28, 2029, although his current status and petition expire July 31, 2026. He has already started the process of obtaining an extension. It is his eventual goal to obtain a green card. He works remotely from his home in the U.S. for OneKonnect. From 2023 to February 2025, he also worked remotely in the U.S. as an ADI analysist for ENERGY Transportation Group, a Canadian company. 17 . The mother is 32 years of age and is a Canadian citizen. She was in the U.S. under L-2 status which is tied to the father’s L-1A visa as a dependent. On her own accord, she has no immigration status in the U.S. or legal authorization to work in the U.S. She currently holds the same employment she did prior to the birth of the child; namely, she works for Interac in Toronto, Ontario. 18 . Given the mother’s lack of immigration status independent of the father, she is unable to sponsor her own parents (maternal grandparents) to the U.S. 19 . The parties started living together on February 27, 2022, in Waterloo, Ontario. They married on October 3, 2023, in Waterloo, Ontario. 20 . The parties moved to the U.S. in May 2024 for the father’s work. The mother was seven months pregnant at the time. 21 . In her Answer in this proceeding, the mother notes the date of separation as April 21, 2025. In this hearing, she asserts the parties separated in November 2024 when she and the child first moved to Ontario. The father asserts the parties separated on April 21, 2025. 22 . The parties have one child together, Yavi Patel, born August 13, 2024. The child was born in Dayton, Ohio. 23 . The child is a dual citizen of Canada and the U.S. 24 . The mother maintains the move to Ohio was temporary. The father maintains that the parties always intended to “indefinitely but permanently reside in the United States” albeit not necessarily in Ohio. He did not rule out living in Canada at some point under his permanent residence status in the event something was to happen to his US L-1A status. 25 . The court finds that the move to Ohio in May 2024 was intentional. It was a deliberate choice made by the parties to enlist the assistance of the paternal grandparents when the child was born. That is the case even if that assistance did not come to fruition, and there was conflict between the mother and paternal grandparents starting when the child was six days old. 26 . As a result of marital difficulties, the mother and child left Ohio and went to Ontario from November 3, 2024, to December 22, 2024. Numerous text messages in evidence confirm that the father did not oppose this. At that time, the father agreed that the child remain in Ontario until she was at least seven months old, at which point his proposal was that mother freeze the breastmilk and the child live with each parent for one month at a time. 27 . The mother and child returned to Ohio in or around December 22, 2024. 28 . It is the mother’s evidence that her return to Ohio in December 2024 was to facilitate the father establishing a relationship with the child and because the father was not providing her with any financial support in Ontario. The father asserts the parties were attempting to reconcile their relationship. 29 . On the mother’s return to Ohio in December 2024, she brought her belongings and her vehicle. She and the child resumed residing in Piqua, Ohio, at father’s suggestion. His parents were away in India and, as such, it was agreed that mother and child could live in the Piqua home with the father during the period of time they were away. 30 . The father quit his second job on February 23, 2025, with the stated intention of providing more assistance to the mother in caring for the child. 31 . With the paternal grandparents returning in March 2025, the parties started looking for alternate accommodations. They found a rental home, and both signed a lease and condo rules for the period March 15, 2025, to March 14, 2026, at a residence located at 5020-22-Dovetree Blvd, Moraine, Ohio 45439 (the “leased premises”). The mother alleges that the lease was never intended to be for a one-year period; rather, because of a lack of short-term rentals, it was intended the parties would break the lease when it came time for mother and child to return to Ontario. However, there is no evidence before the court to support this proposition. For example, the mother did not provide evidence that short-term rentals were not available, nor did she provide evidence as it relates to the time period she expected to remain in Ohio. 32 . For the period March 15, 2025, to April 21, 2025 (a period of 37 days), the court finds that father was away from the leased premises for at least 15 days. The mother provided specific evidence of the days father was not at home as well as evidence of where she believed the father was. According to mother, even when he was not away, father spent little time caring for the child – her estimation was 15-20% of the care. 33 . In April 2025, the mother made a complaint to Child Services in Ohio related to the father’s consumption of alcohol while parenting– the complaint was not verified. The court accepts that this does not mean there is no issue but only that it could not be verified by Child Services. 34 . On April 21, 2025, the father conclusively moved out of the leased premises. He took the child with him. The move out took place in the presence of a Moraine police officer. 35 . The parties differ as to what was said to the police officer on April 21 and 22, 2025, when the mother went to retrieve the child. The police notes attached to mother’s affidavit are from November 2024. Despite the same police officer being involved with the parties on at least two occasions in April 2025, she was not called as a witness. Both parties agree that the police officer was in attendance to assist with communication. Both parties agree that the father said the mother did not have his consent to move with the child to Canada. The father’s evidence is that he maintained that position, whereas the mother’s evidence is that two minutes after he uttered that statement, he indicated that if the mother returned for Ohio proceedings, she could leave with the child. It is likely that given the high level of conflict, the parties misunderstood what was intended by the other. 36 . The mother spoke to an Ohio lawyer before she and the child left the state on April 24, 2025. Based on her conversation with this lawyer and the police officer, she believed she was able to move to Ontario with the child. 37 . The father has not seen the child since April 22, 2025. He does not want to come to Canada on the stated advice of his immigration lawyer. His expert confirmed for the court that for the period of time the father’s application for permanent residence in the U.S. is under review, which she estimates commenced in January 2026, the father should remain in the U.S. 38 . The father has not paid any child support for this child since April 2025. 39 . On the mother’s arrival in Ontario on April 25, 2025, she and the child lived with a friend in Toronto, Ontario until June 1, 2025. She and the child then moved to Kitchener, Ontario. 40 . When the mother left Ohio on April 24, 2025, she left her vehicle and household belongings in Ohio. 41 . The mother returned to Ohio in June 2025 to retrieve her household belongings and personal vehicle. 42 . The father initiated proceedings in Ohio on June 23, 2025 (the “Ohio proceedings”). In that proceeding, he filed an Affidavit of Financial Disclosure. That affidavit sets out a request for a temporary order for custody and child support. On June 25, 2025, the court in Montgomery County, Ohio, made an order, among other things, restraining the mother from removing the minor child from the State of Ohio except temporarily (14 days or less) for vacation, and restrained her from returning to the leased home. It did not grant a custody or access order. Mother was not served with the motion material or the order in the Ohio proceedings until August 2025. 43 . The father maintains that the mother was not served with the Ohio proceedings as he did not know where she lived. The mother maintains the parties were in constant communication and the father did know where she lived. None of the text messages provided indicate that the mother provided the father with her address. 44 . On August 21, 2025, the mother filed a Notice of Appearance in the Ohio proceedings and on August 27, 2025, she filed an Answer and Counterclaim for the Ohio proceedings. She agreed that Ohio had jurisdiction to grant the divorce, divide the parties’ marital assets and liabilities and award spousal support and attorney fees. However, she did not agree that the Ohio court had jurisdiction to make orders related to parenting. 45 . On August 29, 2025, the father filed his Reply to Counterclaim in the Ohio proceedings. 46 . On September 8, 2025, the mother filed her affidavit of income and expenses, affidavit of property and debt, affidavit of health insurance, and information for parenting proceeding affidavit in the Ohio proceedings. 47 . On September 15, 2025, a temporary order was made in the Ohio proceedings requiring the parties to advise the court of any changes in status or circumstances. The Ohio court did not make temporary substantive orders and found that “there is insufficient basis to award temporary orders. There is no award of temporary custody made at this time.” 48 . On October 22, 2025, a temporary hearing in the Ohio proceedings was set for January 5, 2026, and both parties filed briefs. On January 5, 2026, the court in Ohio directed the parties to file an agreed entry respecting parenting time. The parties do not agree whether an agreement was reached on that day or thereafter related to parenting time. The father then made a motion to journalize that agreed entry for parenting time on January 16, 2026. The motion is on pause pending the outcome of this Hague Hearing in Ontario. 49 . The father filed an Application for the return of the child through the U.S. Central Authority in mid-January 2026. The Hague Application packet was received by the court in Kitchener, Ontario, on or about January 27, 2026. 50 . Mother spoke to a common friend and Pastor – Taylor – in Ohio, as well as the Ohio Child Care system with regards to her concerns about the father’s alcohol use and her feelings of isolation before she left in April 2025. She acknowledges there is no independent findings of alcohol abuse, or any findings of abuse or neglect related to her or the child. Part 5 - Analysis 51 . In this case, the parties agree that the child was removed from Ohio on April 24, 2025. They do not agree that it was wrongful as defined by the Convention. For the reasons set out herein, the court finds that the child was removed from Ohio to Ontario on April 24, 2025, that she was habitually resident in Ohio immediately before the removal and that the removal was wrongful. Moreover, as I explain below, the mother has not established an exception under Article 13 of the Convention applies in this case. A. Habitual Residence 52 . The Supreme Court of Canada set out a hybrid approach to the determination of habitual residence in Balev . Citing Balev , the Ontario Court of Appeal summarized this approach in Ludwig , at paras. 30 to 33 : [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:
7. The child’s links to and circumstances in country A;
8. The circumstances of the child’s move from country A to country B; and,
9. 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. 53 . The child had the following links to and circumstances in Ohio as of April 24, 2025: (a) She was born in Ohio. She is a citizen of the U.S. (b) Both of her parents were living in Ohio. (c) She resided with her parents in Ohio from birth (August 13, 2024) to April 24, 2025, save for a seven-week period when she and mother were in Ontario. (d) Her medical coverage and medical doctor and nurse were in Ohio from birth to April 24, 2025; she received her routine vaccinations and two and three-month checkups in Ohio. (e) Her paternal grandparents resided in Ohio, even if they travelled to India two to six months per year. (f) Her father is employed in Ohio, even if it is remote work. (g) She established day-to-day routines in Ohio. (h) All of her belongings were in Ohio including those purchased in Ontario. (i) The mother, father and child lived together in the lease premised in Ohio until April 21, 2025, even if the father was, at times, absent. (j) Child Services in Ohio was involved with her. 54 . Much of the evidence led by mother to demonstrate the child’s ties to Ontario was related to circumstances following April 24, 2025, but it is the links as of April 24, 2025, that this court is required to analyze. 55 . The child had the following links to and circumstances to Ontario, Canada, as of April 24, 2025: (a) She is also a Canadian Citizen. (b) Her mother has a job in Ontario. (c) She had spent 7 weeks of her life in Ontario from October 2024 to December 22, 2024. (d) She may have had a doctor in Ontario – mother’s affidavit states the child has a doctor in Ontario effective November, but she does not provide the year. 56 . The mother’s primary argument is that her life is the child’s life – the child’s routines are the mother’s routines, and that life and those routines are in Ontario and not Ohio. The child’s only link to Ohio, according to the mother, is the father who is a Canadian permanent resident, works remotely and can work in Canada or commute to Ontario to see the child. She argues that the child, who is now 18 months of age, depends on her mother who is physically present in Ontario. The mother has no family, friends, social or familial network in Ohio. The father’s family connections are his own and she was left isolated with no emergency contacts other than her own. Although she agrees that settled intention exception in Article 12 does not apply to this case, she asserts that the passage of time cannot be ignored. These arguments cannot succeed as they run contrary to one of the very purposes of the Convention, which is to deter parents from abducting the child in the hope of being able to establish a link to a new county that might award custody. 57 . Even though the child did not attend school or make friends in Ohio at the date of the removal, Ohio is still the jurisdiction of the focal point of her life, where both of her parents lived until April 24, 2025. Even though this court accepts, on the evidence before it, that the mother was the primary caregiver to the child, that is not sufficient to find that her residence was in Ontario on the facts of this case, where the father did have a relationship with the child. 58 . The court rejects the mother’s assertion that the parties agreed that her return to Ohio on December 22, 2024, was temporary. She moved all of her and the child’s belongings back to Ohio, she signed a one-year lease, and the child resumed her day-to-day activities in Ohio. The mother stayed in Ohio for four months and although she felt isolated, she did communicate with a mutual friend and a pastor about the difficulties in the marriage. She also contacted Child Services in Ohio to report concerns related to the father’s alcohol use. Further, mother has offered no evidence that she was maintaining a residence in Ontario and, in fact, when she and the child came to Ontario on April 24, 2025, she stayed with a friend in Toronto. The parties do not agree that the mother intended to resume her employment in Ontario, and on the conflicting evidence before the court related to the mother’s maternity leave, the court cannot make that finding. 59 . There is no doubt that having lived in Ontario for over ten months now, the child has established connections to Ontario that are meaningful. She is in daycare, has a medical doctor, her maternal grandmother has been assisting with her care for the last five months, and she has made connections with the mother’s friends. However, Ontario was not the focal point of the child’s life on April 24, 2025. 60 . As a result, the court finds that the child was habitually resident in Ohio on April 24, 2025. B. The mother’s argument related to Article 3(a) of the Convention 61 . The mother argues that the removal on April 24, 2025, was not wrongful. She concedes that at the time of the removal, the father was exercising rights to custody either jointly or alone or would have been exercising those rights but for the removal (Article 3(b)). She argues, though, that there was no breach as there is no evidence before the court related to the law of the State in which the child was habitually resident. Accordingly, the mother argues that Article 3(a) is not met, which requires that the removal of the child be in “breach of rights of custody attributed… under the law of the State” from which the child was removed. 62 . The mother’s argument fails. As set out in Article 5 of the Convention, “rights of custody” include the right to determine the child’s place of residence, and “rights of access” shall include the right to take the child for a limited period of time to a place other than the child’s habitual residence. Pursuant to Article 14 of the Convention, in ascertaining whether there has been a wrongful removal within the meaning of Article 3, this court may take notice directly of Ohio law. 63 . The father relies on his legal rights under Ohio state law, including the Uniform Child Custody Jurisdiction and Enforcement Act (1997) and sections 3109.03 and 3109.04 of the Ohio Revised Code. 64 . Section 3109.03 of the Ohio Revised Code establishes that separated, divorced, or unmarried parents have equal rights and responsibilities regarding the care, custody, and residency of their children. It mandates a gender-neutral approach, ensuring neither parent is inherently favored, with decisions ultimately based on the child's best interests . The text of the section reads as follows: When husband and wife are living separate and apart from each other, or are divorced, and the question as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children is brought before a court of competent jurisdiction, they shall stand upon an equality as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children, so far as parenthood is involved. 65 . At paragraph 10 of his Application, the father specifically relies on Ohio Revised Code, s. 3109.04(k). This section states that “shared parenting” includes where “the parents share…all or some aspects of the physical and legal care of their children.” 66 . The Supreme Court of Canada in Thomson v. Thomson, 1994 26 (SCC) , [1994] 3 S.C.R. 551, states as follows, at p. 580: Custody, as understood by the Convention, is a broad term that covers the many situations where a person lawfully has the care and control of a child. …The most obvious case is the situation of parents exercising the ordinary care and control over their child. It does not require any form order of other legal document, although custody may also arise by reason of a judicial or administrative decision, or by agreement. 67 . “Exercising Custody” does not mean the same thing as being a primary caregiver: see Abib v. Abib , 2010 ONSC 5869 , at para. 23 . The threshold for the left-behind parent to establish they were exercising custody rights is low: see Agboola v. Unoh , 2016 ONSC 6779 , at para. 38 . 68 . The parties were married and living together as a family until a few days before the mother and child left Ohio. While the mother may have been responsible for the majority of the childcare, the father participated in the child’s life, shared some aspects of her physical care and took on the role as a parent to the child. The court finds that the removal is in breach of the father’s rights to custody. 69 . Even if mother had not conceded that Article 3(b) had been met, this court would find that the father was actually exercising these rights but for the removal. C. Did the father acquiesce to the move to Ontario in April 2025? 70 . In Katsigiannis v. Kottick-Katsigiannis , 2001 24075 (ON CA) , [2001] 55 O.R. (3d) 456 (C.A.) , the Ontario Court of Appeal explained the meaning of "consent" and "acquiescence" as used in Article 13(a) of the Hague Convention. To "consent" is to agree to something, and to "acquiesce" is to agree tacitly, silently or passively to something such as the children remaining in a jurisdiction that is not their habitual residence: at para. 47. 71 . The test for acquiescence is entirely subjective, depending on the state of mind on the part of the left-behind parent: Katsigiannis , at para. 38 . 72 . To support the position that the father acquiesced or consented to the child’s removal, the mother relies on the case of Thomas v. Thomas, 2024 ONSC 615 . However, this case was overturned by the Court of Appeal specifically as it relates to the finding of acquiescence: Thomas v. Thomas, 2024 ONCA 646 . At paragraph 15, the Court of Appeal made the following comments related to consent and acquiescence: I recite certain principles that apply in Hague Convention cases as they relate to this case. I draw those principles from earlier decisions of this court including Katsigiannis v. Kottick-Katsigiannis , (2001), 2001 24075 (ON CA) , 55 O.R. (3d) 456 and Ibrahim v. Girgis, , 2008 ONCA 23 , 291 D.L.R. (4th) 130 . Those principles include: i. The object of the Hague Convention is to deter abductions of children and to secure the prompt return of children where abductions occur; ii. "consent" and "acquiescence" as used in Article 13(a) should be given their ordinary meaning; iii. Acquiescence is a question of the actual subjective intention of the wronged parent; iv. The onus rests on the abducting parent to establish acquiescence by the objecting parent; v. Acquiescence must be established on clear and cogent evidence; vi. To be established, it must be shown that the acquiescence was unequivocal; vii. The standard for finding acquiescence is high. 73 . And later at, paragraph 23, as it relates to the Superior Court decision in Thomas : …citing the balance of probabilities standard is inconsistent with existing authorities that establish that the "standard for finding acquiescence is high": Jackson v. Graczyk , 2007 ONCA 388 , 86 O.R. (3d) 183 , at para. 50 . It is also inconsistent with the requirement that there be clear and cogent evidence of acquiescence. Clear and cogent evidence does not require a balancing of evidence of the type envisaged in the balance of probabilities standard. The clear and cogent evidence standard is also not established by a finding that the appellant "implicitly consented". 74 . In order to establish an Article 13(a) defence, the mother must prove words or conduct on the part of the father that are inconsistent with the child's summary return: U.K. v. N.A, 2021 ONCJ 73 , at para. 107 ; Webb v. Gaudaur , 2015 ONSC 6956 , at para. 87 . 75 . “Summary return” means a return of the child in the relatively immediate future, as opposed to an eventual return. And the length of time that must pass before acquiescence will be found will depend on the circumstances of each case: Katsigiannis , at para. 36 . 76 . Mere delay, without more, will likely be insufficient to constitute “clear and cogent evidence” of conduct which is inconsistent with the summary return of the child to their habitual residence. This is particularly the case where the left-behind parent later moves for the child's return within the 12 months period after the removal or retention: Ibrahim v. Gir gis , 2008 ONCA 23 , at para. 28 . 77 . The parties agree that the following text messages, among others, were sent and received between them following the removal of the child on April 24, 2025, and before the father commenced his action in Ohio in June 2025: • April 24, 2025, message from the mother to the father: “We left, will notify when we come back.” • May 15, 2025, in response to the mother’s request for the father to see the child for a few days, he responds, “If you are going to let her stay with me for at least a month, let me know. Then we can talk about arrangements. If not, there is no point. It’s too much disruption for her.” 78 . These text communications are not sufficient to find that the father acquiesced in the child’s move. The text messages provided to this court are not clear and cogent evidence that father acquiesced in the move – the lack of clarity does not meet the high onus that mother must meet. 79 . There is a clear discrepancy between the mother and the father as to what was said in the presence of the police officer in April 2025. The police records provided to this court are for an incident on November 2, 2024, not in April 2025; and, regardless, they do not assist this court. 80 . It is also notable that the mother consulted with legal counsel before she left for Ontario in April 2025 and could have obtained clear consent from the father prior to leaving for Ontario. 81 . The mother has not provided this court with clear and cogent evidence of consent or acquiescence to the wrongful removal of the child in April 2025. Even if the father did acquiesce to the move in November 2024, the court cannot find that he acquiesced to the move in April 2025. The mother indicated in her text of April 24, 2025, that she would return, and the father expressed an intention to see the child for not less than a month. The police officer was not called to testify, and the police notes submitted do not even refer to the day in question. 82 . On the conflicting evidence before the court, the mother has not met the high onus of showing that the father acquiesced. D. Exception Article 13(b): Grave Risk of Harm or Intolerable Situation 83 . There is a high threshold to prove grave risk of physical or psychological harm or intolerable situation: Thomson , at pp. 596-597, and Ellis v. Wentzell-Ellis, 2010 ONCA 347 , at para. 40 . The parent opposing the return of the child bears the onus to establish the exception: Gourgy v. Gourgy , 2018 ONCA 166 , at para. 10 . 84 . In Zafar v. Azeem, 2024 ONCA 15 , a case involving a non-Hague Country, the Court of Appeal for Ontario confirmed, at para. 80, that the “grave risk of harm” terminology involving an intolerable situation in Article 13(b) of the Convention is a higher test to meet than the “serious harm” standard employed in s.23 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. As the Court of Appeal noted in Zafar , “[this] is because signatories to the convention are able to rely on their reciprocal recognition that ultimate custody decisions will rest on the best interest of the child”: at para. 80, citing Ojeikere v. Ojeikere , 2018 ONCA 372 , at para. 60 . 85 . The Ontario Court of Appeal states in Jabbaz v. Mouammar , 2003 37565 (ON CA) , [2003] 226 D.L.R. (4th) 494 (Ont. C.A.), at para. 23 : The risk of physical or psychological harm or, as alleged in this case, an intolerable situation, must be, as set out in Article 13, “grave”. The use of the term “intolerable” speaks to an extreme situation, a situation that is unbearable; a situation too severe to be endured. 86 . In this case, the mother asserts that there is a grave risk that the child’s return to Ohio would expose her to psychological harm or otherwise place her in an intolerable situation, as contemplated by Article 13(b) of the Hague Convention because: (a) The mother is a Canadian citizen with no immigration status in the U.S..She would be unable to legally remain in Ohio post-divorce. (b) The father’s own status in the U.S. is uncertain. (c) The mother was, and is, the child’s primary parent and caregiver, having spent the majority of time with her. The child’s primary bond is with her. Any risk of separation from her would cause significant psychological harm and place her in an intolerable situation. (d) The mother would lose her job in Ontario, and the father does not pay support which would result in financial instability. 87 . The father’s immigration law expert testified that while separated and not yet divorced, the mother maintains her status and can return to the U.S. under her L-2 derivative status. Notably, the father has undertaken not to proceed with a divorce until parenting issues have been dealt with. 88 . Although there is no guarantee, it is likely the father’s L-1A status will continue. The impact of him having worked a second job and whether he disclosed same is unknown. However, the court cannot make a finding of intolerable situation for the child based on an unknown. Further, if the father cannot stay in the U.S., then it is logical that both parties will agree to a change in venue for adjudicating the parenting dispute. 89 . I agree that the evidence before the court supports the mother’s assertion that she was and is the child’s primary caregiver for reasons including: (a) Up until February 2025, the father worked two jobs. (b) The father himself admitted that he would need the assistance of a nanny or other person in order to care for the child if he was to have her in his care. (c) Although the father assisted with the morning and bedtime routine when he resided with the mother and child, the mother was the one to care for the child’s daily needs. (d) The mother was responsible for feeding, bathing, routine medical appointments and most aspects of the child’s life. In fact, this was the major source of frustration between the parties; namely that the father was not involved and that the mother felt she had been manipulated to move to Ohio under the false pretense that the paternal grandparents would assist in parenting. (e) The mother provided the court with very specific detailed evidence of the child’s routine, her engagement with the child, her responsibility for the child’s emotional, medical and other needs. However, this alone does not create a risk of physical or psychological harm or intolerable situation as asserted by the mother. 90 . With respect to the concerns raised by the mother related to the father’s nonpayment of child support, these can be addressed by the court in Ohio. The father has undertaken to pay for accommodation for the mother for a period of up to six months to a maximum of $1,500 per month and a one-way flight for her and the child to return to Ohio. Although this court would have preferred to know the length of time it would take for an order to be made in Ohio relative to parenting and support, it is clear that it is moving diligently through the Ohio court system. 91 . While not argued before me, it was raised in the mother’s affidavit material that the father has an issue with alcohol consumption, which the father denies. I find there is insufficient evidence to establish the father has issues with alcohol. The mother has attached one picture which purports to establish that one day the father was drinking while the child was in his care, punched a hole in the wall and fell and gained a black eye. She told Child Protection, Pastor Taylor and a common friend. Child Protection was unable to verify her concerns and there is no other evidence before the court. That does not mean the incident did not occur, but only that the court cannot conclude it did based on the evidence before it. The father was not cross-examined on this issue. 92 . Based on the above, this court finds that the mother has not met the high threshold to prove grave risk of physical or psychological harm or intolerable situation. Part 6 - Conclusion 93 . This court is not to engage in the best interest of the child test which is the test that is universally and consistently applied in custody and access cases. Where there has been a wrongful removal or retention, and no affirmative defense is established within the meaning of the Convention, the child must be returned to her habitual residence: Katsigiannis , at para. 32 . 94 . In this case, having found there was a wrongful removal and that no affirmative defense has been established, the child must be returned to Ohio. Part 7 – Should Police enforcement be ordered? 95 . There is no evidence before the court that the mother will not comply with this court’s order. There will be required coordination between the lawyers. The court sees no need to make such an order for police enforcement at this time. Should the order made out not be complied with, the parties may return before me on short notice. Part 8 – Order 96 . I make the following order: a. Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction , the child shall be immediately returned to her place of habitual residence: Ohio, in the United States. b. The father shall comply with the undertakings he provided, as attached . Part 9 – Other issues 97 . The mother’s Application in Ontario remains outstanding. This decision should provide guidance regarding next steps. 98 . The father was successful in his Application. The parties shall have meaningful discussions regarding the amount of costs. If they are unable to agree, the father shall serve and file and upload his cost submissions to the portal by no later than March 29, 2026. The mother shall serve and file and upload to the portal her written response by April 12, 2026. The submissions should not exceed three pages, double space, not including offers to settle or bill of costs. Extensions will not be granted. In addition to uploading the submissions through the portal, the parties can send these to my attention at kitchener.SCJJA@ontario.ca. ­­­________________________________

Piccoli, J. Date: February 24, 2026