Will Hutcheson

The applicant father sought the immediate return of the parties' two young children to Ontario, alleging the respondent mother had unilaterally relocated them to British Columbia.

The mother sought to dismiss the motion, arguing the children were habitually resident in British Columbia and requesting supervised/virtual parenting time for the father due to concerns about his mental health and criminal charges.

The court found the children were habitually resident in Ontario, as the mother's surreptitious move did not alter their habitual residence.

The court ordered the children's return to Ontario within 15 days and established an interim supervised parenting schedule for the father, pending DNA testing for the younger child.

The appellant appealed a trial judgment, arguing that pre-trial spousal support payments exceeded the Spousal Support Advisory Guidelines and that the trial judge erred by not ensuring the respondent had a Turkish interpreter.

The Court of Appeal dismissed the appeal, finding it was within the trial judge's discretion not to revisit the pre-trial financial arrangements, especially since income was imputed to both parties.

The Court also found no miscarriage of justice regarding the lack of an interpreter, as both parties were represented by counsel and the respondent sought clarification when needed.

The appellant mother appealed a decision granting the respondent father's application under the Hague Convention to return their child to Australia.

The mother opposed the return under Article 13(b), alleging the father was a violent criminal and drug addict, and that returning the child would expose him to a grave risk of psychological harm.

The application judge ordered the child's return without hearing viva voce evidence.

The Court of Appeal dismissed the appeal, holding that the application judge correctly applied the stringent test under Article 13(b) and that oral evidence was not required because there was no realistic possibility it would establish the defence.

The matter was remitted to determine undertakings prior to the child's return.