PETITION OF ML V JH

Factual and Procedural Background

This opinion concerns an application by the Petitioner, the mother of a young child, for an order that the child be returned to Canada. The child, born in Canada in September 2019, is a Canadian national and lived there under the sole care of the Petitioner during his first year, except for a visit to Scotland in December 2019/January 2020. The Respondent, the British father residing in Scotland, was allowed by agreement dated 11 September 2020 to take the child to Scotland temporarily, with the understanding that the child would be returned to Canada by 15 December 2020. The child was not returned as agreed, and the Petitioner’s attempt to collect him was refused by the Respondent. The Petitioner initiated proceedings in early February 2021. Procedural delays occurred due to late lodging of documentation and complexities arising from the Petitioner’s move from Ontario to Quebec shortly before the child’s departure to Scotland. The final hearing was conducted on 23 April 2021.

Legal Issues Presented

1. Where was the child habitually resident as at 15 December 2020 when the Respondent was due to return him to Canada?
2. If the child remained habitually resident in Canada, was that in Quebec or Ontario?
3. If the child had lost habitual residence in Quebec (and Ontario), had he acquired a Scottish habitual residence by 15 December 2020?
4. If habitually resident in Quebec on 15 December 2020 and wrongfully retained in Scotland, has the Respondent established an Article 13(b) defence to refuse return?
5. If habitually resident in Ontario on 15 December 2020 and no Article 13(b) defence established, can the court order return to Quebec rather than Ontario, given they are separate territorial jurisdictions within Canada?

Arguments of the Parties

Petitioner's Arguments

• The move from Ontario to Quebec in September 2020 was intended to be permanent, with the child settling immediately in Quebec with the Petitioner and her father.
• The child had lost habitual residence in Ontario by early September 2020 and acquired habitual residence in Quebec by 11 September 2020.
• The Respondent’s position that the child was "in transit" through Quebec is incorrect; the move was planned and communicated to third parties.
• The child’s time in Scotland was temporary and agreed to be limited, not constituting a new habitual residence.
• The Respondent’s allegations of neglect and mental health concerns are not supported by independent evidence and are rebutted by medical records and other materials.
• The Petitioner denies allegations of neglect and inappropriate care, providing medical records and video evidence of appropriate parenting.

Respondent's Arguments

• The child’s habitual residence remained Ontario as the child spent only a few days in Quebec before traveling to Scotland.
• The child had become habitually resident in Scotland by 15 December 2020 due to the Respondent’s care and residence there.
• The Respondent imposed conditions on the return of the child related to the Petitioner’s mental health and accommodation, which were not met.
• There is a grave risk of physical or psychological harm to the child if returned to Canada, based on the Petitioner’s mental health history and alleged neglectful parenting.
• Support for the grave risk defence is provided by affidavits from the Petitioner’s mother and her partner, describing a volatile and unstable home environment.
• Video evidence is presented to demonstrate the Petitioner’s inappropriate behaviour towards the child.
• The Respondent contends that the child’s care arrangements in Quebec are uncertain and that the Respondent’s home in Scotland is a safer environment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the factual circumstances surrounding the child's habitual residence at the time of the alleged wrongful retention. It found that the child had lost habitual residence in Ontario by early September 2020 and acquired habitual residence in Quebec by 11 September 2020, based on a planned, permanent move with the primary carer to the father's home in Quebec. The child's brief stay in Scotland was temporary and did not amount to acquiring a new habitual residence there by 15 December 2020, supported by the absence of integration indicators such as medical registration or nursery attendance.

The court applied the established legal principles from authoritative precedents focusing on the child's integration and factual situation rather than parental intention alone. It rejected the Respondent's contention that the child was "in transit" and concluded the retention in Scotland was wrongful under Article 3 of the Hague Convention.

Regarding the Article 13(b) defence, the court carefully considered allegations of mental health issues and neglect but found the evidence insufficiently clear and compelling to establish a grave risk of harm or an intolerable situation if the child were returned to Canada. The court noted conflicting and non-independent evidence supporting both parties' positions and emphasized the presumption that Canadian courts could protect the child’s interests.

The court acknowledged that issues of credibility and reliability could not be definitively resolved on the affidavit material and that future proceedings in Quebec would address care arrangements. It accepted the Respondent's indication that he would comply with a return order and litigate care matters in Canada.

Holding and Implications

The court’s final ruling is to grant the prayer of the petition, ordering the return of the child to Canada.

The direct implication is that the child must be returned to his habitual residence in Quebec, Canada, as of 15 December 2020. The court will hear further submissions on the specific arrangements for the child’s return. No new precedent was established by this decision, and the determination of care arrangements will be left to the Canadian courts. Questions of expenses are reserved.