JP v TNP, 2016 ABQB 613

Court of Queen’s Bench of Alberta Citation: JP v TNP, 2016 ABQB 613 Date: 20161101 Docket: FL03 51048, FL03 51175 Registry: Edmonton IN THE MATTER OF THE INTERNATIONAL CHILD ABDUCTION ACT , REVISED STATUTES OF ALBERTA 2000,

CHAPTER I-4 Between: JP Applicant - and - TNP Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.M. Ross _______________________________________________________ Introduction [ 1 ] JP, his wife, TNP, and their children, J and L, travelled from Pennsylvania to Athabasca, Alberta in the summer of 2016 to visit TNP’s mother and grandmother, who were both ill.

At the end of August 2016, TNP refused to return to Pennsylvania with the children, contending that JP was abusive towards her, and posed a grave risk of physical and psychological harm to his children. TNP obtained an Emergency Protection Order (EPO) against JP from the Alberta courts preventing JP from contacting her or the children. JP returned to Pennsylvania, but TNP and the children remained in Athabasca.

[2] JP has applied pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 1343 UNTS 89, CanTS 1983 No 35 [Hague Convention] for the return of the children to Pennsylvania, where they have lived their entire lives. TNP opposesthat application on the basis that the children would be exposed to an unreasonable and grave risk of physical and psychological harm ifthey were returned to Pennsylvania. She has also applied to extend the EPO for one year. Background Facts [3] JP and TNP began a relationship in 2003. They married on February 14, 2009 in Kittanning, Pennsylvania.

JP is an Americancitizen, and TNP is a Canadian citizen with permanent residency in the United States. They have lived in Pennsylvania for the entirety oftheir relationship, and have two children together: J (born December 12, 2008) and L (born August 28, 2013). [4] TNP deposes she has suffered serious mental, physical and sexual abuse at the hands of JP throughout their relationship. Thespecifics of TNP’s allegations are discussed below. [5] JP’s parents and extended family live in Pennsylvania.

TNP’s mother lived in Pennsylvania since 2002, but relocated toAthabasca, Alberta in 2015 to live with TNP’s grandmother. Both TNP’s mother and grandmother have health problems. TNP travelledto Athabasca with L on June 15, 2016 to help care for her mother and grandmother. JP provided a letter consenting to TNP taking L toCanada, indicating the two “should be returning in about 2 weeks from Edmonton International Airport back to Pittsburgh InternationalAirport.” This did not happen.

Instead, JP and J joined TNP and L in Athabasca in July 2016. [6] TNP alleges the threatening behavior and abuse continued while the family was together in Athabasca in July and August2016, including death threats and instances of physical abuse against both her and J. While she had intended to return to Pennsylvaniawith JP and the children before the school year started, she changed her mind on August 23, 2016 and informed JP that she wanted adivorce.

A fight ensued which resulted in police intervention. [7] The RCMP advised TNP that charges would be filed against JP for uttering threats of bodily harm and harassment, althoughit is unclear whether these charges reference actions against TNP or her mother and grandmother. JP’s counsel indicated during oralargument that she had been unable to obtain copies of the informations for these charges from the RCMP detachment as of the date ofthe hearing. JP was notified that if he did not leave the country immediately, he would be deported.

He returned to Pennsylvania at theend of August 2016, leaving TNP and the children in Athabasca. [8] TNP obtained an EPO against JP on August 25, 2016, preventing him from having any contact with her or the children. TheEPO remains in force, subject to modifications made by Browne J. on September 16, 2016 which added TNP’s mother and grandmotherto the order, and permitted JP weekly Skype visits with the children on Sundays at 5:00. [9] TNP’s mother owns the home the family resided in in Pennsylvania. When JP returned, he discovered that the home was inforeclosure due to unpaid medical liens on the premises.

The liens relate to debts incurred by TNP’s mother. JP is now living with hisfather. TNP claims she will be homeless if she returns to Pennsylvania with the children, and would be forced to live in an emergencyshelter. [10] On September 6, 2016, TNP filed an application in the Court of Queen’s Bench pursuant to the Family Law Act, SA 2003, c F-4.5 seeking sole custody of the children. [11] On September 9, 2016, JP filed an emergency petition for special relief regarding custody with the Court of Common Pleas inButler County, Pennsylvania.

On September 13, 2016, Judge Doerr granted JP sole custody of J and L pending a full hearing on thematter, ordered the children be returned to JP in Pennsylvania forthwith, and granted TNP supervised visitation of the children pending ahearing on the matter. TNP deposes she was not notified about this action in advance. She was not represented at the hearing. Thematerials filed by JP do not refer to domestic abuse. [12] On September 21, 2016 JP filed a Notice of Application with Alberta Justice under

Article 16 of the Hague Conventionrequesting the immediate return of the children to Pennsylvania. Accordingly, TNP’s parenting application in Alberta was automaticallystayed pursuant to

Article 16 pending a determination of whether the children should be returned to Pennsylvania. The EPO against JPremains in force, and TNP’s application to extend the EPO will be considered concurrently with this application. Issue [13] Canada signed the Hague Convention on October 25, 1980, and it was implemented in Alberta via the International ChildAbduction Act, RSA 2000, c I-4. The United States ratified the Hague Convention on March 29, 1988. [14]

Article 1 states that the objects of the Hague Convention are “(

a) to secure the prompt return of children wrongfully removedto or retained in any Contracting State; and (

b) to ensure that rights of custody and of access under the law of one Contracting State areeffectively respected in the other Contracting States.” Parties who believe their children have been wrongfully taken to another state mayapply to the designated Central Authority in either the children’s habitual place of residence or in the jurisdiction where the children weretaken:

Article 8. In Alberta, the designated Central Authority is the provincial Ministry of Justice. Applications pursuant to the HagueConvention preempt local custody applications, and must be decided before any further decisions are made respecting custody: Article16. [15] Removal of a child is considered “wrongful” even if consent is granted by the person or institution holding custody rights forthe child to travel temporarily away from their home jurisdiction, but the child is then “retained” in the foreign jurisdiction beyond whatwas originally contemplated: Thomson v Thomson, (SCC), [1994] 3 SCR 551 at 592-93.

[ 16 ] If less than a year has elapsed from the date of wrongful removal or retention to the date a return application is filed, the Central Authority must return the child to the country of habitual residence forthwith, unless one of the enumerated exceptions applies:

Article 12. One of the exceptions is found in

Article 13(b), which states “…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 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 position.” [ 17 ] It is clear on the facts of this case, and conceded by TNP, that Pennsylvania is the habitual residence of the children; that both parents had custody rights over the children by operation of law at the time of their removal to and retention in Canada; that the children were wrongfully retained in Canada beyond what was originally contemplated; and that JP’s return application under the Hague Convention was filed within a year of the wrongful retention. [ 18 ] The sole issue on the application is whether TNP has demonstrated that the children will face an intolerable and grave risk of harm under

Article 13(

b) if they are returned to Pennsylvania. Evidence regarding Abuse [ 19 ] TNP swore two affidavits deposing to serious mental, physical and sexual abuse to her from JP throughout the course of their relationship. She also testified to this effect before Judge Dalton of the Provincial Court at the original EPO. [ 20 ] Among a number of other incidents, TNP described one incident in February 2015 when, in the course of an argument that had become physical, JP grabbed her by the throat and started to choke her. He only stopped when their son approached, crying. Another incident occurred in May 2015.

JP told TNP he was going to kill her. He took guns from their home and put them in their car. While she was standing 15 feet away holding L, JP shot 6-10 shots into the woods beside the house. He then tried to grab her and took L out of her arms and drove away. She called 911 and police were involved but no charges were laid. On another occasion, in May 2016, TNP tried to leave the home following a fight. JP followed her, picked her up and tried to throw her in the trunk of the car, saying he would kill her. This happened in front of the children.

TNP called police, who suggested that they should take a break and have no contact for the weekend. She stayed with her stepfather, but JP began to stalk her and she “had no choice but to move back in with him.” [ 21 ] TNP was unable to provide police records documenting these calls.

However, counselling records indicate that she told a counsellor in September 2015 that she had “kicked [JP] out earlier in the summer and called the cops on him after he was violent and threatening against her and the kids.” Further, JP acknowledges in his affidavit that police were called to their home “once in May 2015” but he says that he called them because TNP was losing her temper and that he did not threaten her or use a gun. [ 22 ] When testifying before the Provincial Court, TNP said that JP “scares the hell out of me when he’s mad”, has “constantly made threats to me that I will never see my kids again” and that “it doesn’t matter where I go, he will always find me.” [ 23 ] The counselling records provided by TNP span the period November 2014 to June 2016.

Other than the September 2015 record referred to above, there are no notes of reports of physical abuse or threats, although there are a number of reports regarding stress and arguments.

TNP deposed that she was “extremely afraid to be completely candid with the counsellor because [she] was afraid that child protection services would intervene” and take her children away from her. [ 24 ] As to events that occurred in Athabasca during the summer 2016, TNP gave evidence that when JP and J arrived in Athabasca, after J had been in JP’s sole care for about six weeks, J had gained 20 pounds and had bruises on his side and back. J told TNP that JP hits him when she is not looking. [ 25 ] TNP says that JP’s behavior became increasingly erratic and threatening while they were in Athabasca.

On one occasion, he smacked J so hard that J had finger marks on his face, and another time, he swore at J, grabbed his arm and “nearly pulled it out of its socket.” He threatened to punch TNP’s mother in the face when she refused to turn over the children’s travel documents to him, and to kill her mother and grandmother if they tried to stop him from taking the children back to Pennsylvania.

He said that, if her mother tried to stop him from leaving with the children, he would force TNP and the children into his car and “nobody would see [TNP] alive again.” [ 26 ] At the EPO hearing, Judge Dalton asked TNP whether the fights and disagreements between her and JP were because they were splitting up and JP did not want to have his kids taken away from him. TNP denied that, saying that “the fights started way before we had even discussed that … from the moment he arrived he started fighting with me”.

In granting the EPO, Judge Dalton found that there was sufficient evidence to prove that family violence had occurred, and observed that the breakdown of the parties’ relationship could lead to further violence. [ 27 ] The EPO as modified allows JP to communicate with the children via Skype on Sundays at 5:00 pm. He is not permitted to communicate with TNP. TNP has deposed that JP violated the EPO on one occasion when he sent two messages to her via Skype while he was talking with the children. [ 28 ] JP denies all of TNP’s allegations of abuse.

He says there are no reports of domestic violence between them and they have never been investigated by or contacted by child protective services. [ 29 ] JP observes that TNP left J in his sole care when she traveled to Athabasca with L, suggesting she trusted JP to care properly for J. Further, TNP was prepared to return to Pennsylvania with him and the children up until the end of August, suggesting she did not perceive any “grave harm” at that time.

JP says that he tried to leave for Pennsylvania with TNP and the children at least four times over a two week period in August, but every time he would get the car packed, TNP’s mother and grandmother would convince her not to leave. He needed to get back to work, and J needed to start school in September, and he could not get TNP to agree to go home. The situation was getting urgent. The argument came to a head on about August 23, 2016. Police arrived while they were arguing and told him to leave.

Law [30] The leading case interpreting the Hague Convention as it is applied under Canadian law is the Supreme Court of Canadadecision in Thomson. That case involved a child born and raised in Scotland who was taken to Canada by his mother to visit family.

Theparents were separated, and the court order granting the mother interim custody contained a clause prohibiting the child’s removal fromScotland. [31] With respect to the “grave risk of physical or psychological harm” exception, the Court held that the psychological harm mustbe greater than what would ordinarily be expected when moving a child from one jurisdiction to another; the harm must amount toplacing the child in “an intolerable situation”: at 596-97.

If a court orders the return of the child to their place of habitual residence, itmay require undertakings from the requesting party to ensure the child’s best interests are protected: at 599. If the risk of physical orpsychological harm can be mitigated by ordering undertakings, the court should pursue that. [32] In Thomson, the father agreed to not take physical custody of his son upon his return to Scotland, and to commence aproceeding with a court of competent jurisdiction in Scotland to determine custody on a final or interim basis.

The Court ordered thechild be returned on the basis that Scotland was the child’s habitual residence, the removal was in violation of a Scottish court order, thefather agreed to undertakings that were sufficient to mitigate negative impacts from the transition, and the child was unlikely to face agrave risk of physical or psychological harm. [33] The “grave risk of physical or psychological harm” exception was explored in DR v AAK, 2006 ABQB 286, 396 AR 33. Thatcase concerned an application by the father to return the child from Alberta to France under the Hague Convention.

The mother opposedthe application on the basis the child would be exposed to a grave risk of physical and psychological harm, alleging the father sexuallyabused the child in the past and the French authorities did not take adequate steps to protect the child. Rooke J. (as he then was) foundthat mere proof that sexual touching had occurred in the past was insufficient to demonstrate the child faced a grave risk of harm; it alsohad to be proven that the foreign jurisdiction is either unwilling or unable to protect the child from further harm: at para 13.

It ispresumed that the legal and social systems in the child’s place of habitual residence are adequate to protect the child unless evidence isadduced to the contrary: at para 49.

Rooke J. also affirmed that undertakings should be used to mitigate alleged risks of harm to allow thechild to return to their place of habitual residence where possible: at para 41. [34] In Rechsteiner v Kendell (1998), (ON SC), 39 RFL (4th) 127, 58 OTC 184 (Ont Ct J) [Rechsteiner], aff’d(1999), (ON CA), 1 RFL (5th) 101, 125 OAC 356 (Ont CA), affidavit evidence showed that the child experiencedextreme anxiety and panic attacks when separated from the mother, and the mother lacked the necessary visa to return to the child’shabitual place of residence.

The Court found that the child would be exposed to an intolerable risk of psychological harm if ordered toreturn to her country of habitual residence forthwith, since the mother was incapable of coming with her: at paras 43, 50. Instead, theCourt ordered the mother to take immediate steps to secure the required visa, and when that was done, return to the child’s place ofhabitual residence along with the child: at para 53.

A finding that a “grave risk” exists if the child is immediately returned does not endthe inquiry; if undertakings can mitigate the risk and allow for an eventual return, that is another avenue the Court may elect to take. [35] In Pollastro v Pollastro (1999), (ON CA), 43 OR (3d) 485 (Ont CA) [Pollastro], the mother left Californiafor Ontario with her son because of the father’s violence towards her. The mother’s evidence of abuse was corroborated by evidencefrom other witnesses, and transcribed phone messages.

Abella J.A. (as she then was), speaking for the Court, concluded that, while manyfacts and allegations were disputed, it had been conclusively established that the father was “verbally abusive and threatening to his wife,family and friends”; had been violent “towards her, causing physical harm”; had behaved “irrationally and irresponsibly, both during andafter their cohabitation”; had a “drug and/or alcohol problem”; had been “unpredictable and unreliable” when responsible for his son’scare; had difficulty controlling his temper; and his hostility towards his wife was “palpable”: at para 32.

Returning the child to a “violentenvironment places that child in an inherently intolerable situation”: at para 33 (emphasis in original). [36] In Pollastro the Court did not consider whether the authorities and courts in California were willing and capable of effectivelyprotecting the child, nor did the Court consider whether it was possible for the mother to live separately from the father with the child inCalifornia pending a final determination of custody there.

This is in contrast with another case decided the same year by the OntarioCourt of Appeal, Finizio v Scoppio-Finizio (1999), (ON CA), 46 OR (3d) 226 (Ont CA) [Finizio]. [37] In Finizio, the mother objected to the return of her children to Italy on the basis that the father had physically abused her in thepast. No allegations were made that the father abused the children. The Court noted that there was only one alleged incident of physicalviolence against the mother, and the situation was “far removed from the terrifying situation” in Pollastro: at para 32.

The Courtconsidered whether the authorities in Italy had failed to protect the children in the past at para 33: With respect to the police, the matter is in their hands. The fact that no charges have been laid against the husband should not give rise tospeculation that the police are not performing their duties properly. With respect to the courts, it needs to be emphasized that the wifetook no steps to raise issues of support or custody in the Italian courts before removing the children to Canada.

Accordingly, there wassimply no role the Italian courts could play. [38] The Court concluded that, in the absence of clear evidence, the court should presume that the other contracting state willmake suitable arrangements for the children’s welfare: at para 34. The long-term best interests of the child are to be determined by thecourt of the child’s habitual place of residence: Finizio at para 36, citing Thomson at 599.

The Court emphasized the importance ofconsidering undertakings when determining if it is possible to mitigate potential harms to the child when relocated to their habitual placeof residence: Finizio at para 37. The husband agreed to purchase airline tickets for the wife and children and to provide them withsuitable accommodations separate from himself in Italy, to pay $10,000 CDN in lump sum support to help cover expenses until an Italiancourt could determine future support obligations, and to refrain from “annoying, harassing or molesting the wife” without admitting tothat type of conduct previously.

These undertakings were sufficient to mitigate the alleged negative effects of moving the children backto Italy until the Italian authorities and courts had an opportunity to fully consider the matter of custody.

[39] In an annotation on the Pollastro case, Professor James G. McLeod opined that Justice Abella’s decision “provides areasonable compromise to reconcile two competing policy objectives on application for the return of a child” under the HagueConvention, which he described as follows: Pursuant to the Convention, courts are directed to order the return of children wrongfully removed from their place of habitual residence.On an application for the return of a child under the Convention, a court should not conduct a full hearing into which parent should havecustody. The Convention is intended to provide a

summary procedure to ensure that custody decisions are made by the courts of theplace where a child is habitually resident. The main purpose of the Convention is to discourage the wrongful removal of children fromtheir place of habitual residence. Under the Convention, courts have limited power to decline to order the return of children who have been removed from their place ofhabitual residence without the consent of both parents or a court order.

Article 12 of the Convention provides that a child who has beenwrongfully removed must be returned forthwith. However, under

Article 13 a court need not return a child if it is satisfied that the returnrepresents a “grave risk” to the child. In applying

Article 13, a court must balance society’s interest in protecting children generally bydiscouraging childnapping against its interest in protecting the interest of the particular child before the court. (Emphasis added.) James G. McLeod, Pollastro v Pollastro, Case Annotation, (ON CA), 1999 CarswellOnt 848 (WLCan). [40] In my view, reconciling Pollastro and Finizio, and achieving the balance described by Professor McLeod involves not onlyconsidering the nature of the alleged harm, but also the evidence supporting the allegations. As Professor McLeod noted: Where the facts and allegations relied upon under

Article 13(

b) are disputed, a court must decide whether the allegations are sufficientlycredible and the potential risk sufficiently great to justify overriding the presumption in favour of returning a child under

Article 12. Thismay be difficult where all of the evidence is by affidavits. It is difficult to assess a person’s credibility based on documents drawn bylawyers. In Pollastro, the mother adduced evidence from various people to support her case. Practically, a court is more likely to believean allegation that is confirmed by a number of impartial people than one based solely on a litigant’s testimony.

Although corroboration isnot necessary as a matter of law, it may be the only way to allow a court to choose between two conflicting stories. [41] In Zaman v Khan, 2001 ABQB 607, 20 RFL (5th) 209 [Zaman], Veit J. was referred to both Pollastro and Finizio. Themother gave evidence that the father had been convicted of an assault against her in the past, and that he was often physically abusivetowards both her and their child. The father agreed that the relationship was violent, but swore that it was the mother who was verballyand physically abusive. Veit J. found that the high standard of proof under

Article 13 had not been met. Further, she found it was “neithernecessary nor appropriate” to attempt to resolve the conflict in the evidence (at para 23): Although there is a dispute between the parties about the nature of their relationship, it is neither necessary nor appropriate to resolve thatconflict by holding a viva voce hearing in this court in an attempt to determine who is telling the truth about the nature of theirrelationship. It is not necessary to hold a hearing because, even if each of Ms.

Khan’s allegations were true, returning Hamza to NewZealand for a custody hearing would not place Hamza in an intolerable situation. Nor is it appropriate to hold such a hearing: theobjective of the Convention is to effect the return of children to their home jurisdiction as soon as possible. The allegations made by Ms.Khan in both her affidavits will eventually have to be tested; those allegations, if correct, are undoubtedly relevant to the issue ofcustody. But the custody hearing will be held in New Zealand, which is Hamza’s domicile, rather than in Canada. Analysis [42] TNP bears the onus under

Article 13(

b) to demonstrate that the children face an intolerable and grave risk of physical andpsychological harm if they are returned to Pennsylvania. [43] The conduct by JP that is alleged by TNP, if proven, would demonstrate a grave risk of physical and psychological harm tothe children, should they be returned to his custody in Pennsylvania. This is not one instance of alleged violence, but a pattern of controland intimidation involving death threats and threatening use of firearms, as well as physical violence.

While the alleged conduct ismostly directed at JP, it has occurred in the presence of the children and has also been directed at them to some extent. I also agree withJudge Dalton’s observation during the EPO hearing, that where there is a pattern of family violence, the breakdown of the parties’relationship can lead to further violence. [44] There is some corroborating evidence in TNP’s counselling records, and while she did not disclose serious abuse to hercounselor, she has provided an explanation for that. JP admits that there has been some police intervention.

However, the frequency andnature of police interventions are unclear. There is no evidence that JP has been charged or convicted of any criminal offences related todomestic abuse against TNP and the children. [45] JP denies all allegations. He points to the lack of significant corroborating evidence.

He also submits that TNP’s conduct inleaving J in his care, and her evidence that she had planned to return to Pennsylvania with him and the children, cast doubt on thecredibility of her evidence. [46] TNP submits that her failure to take further steps in Pennsylvania, and her acquiescence, were due to her fear of JP and herfear of losing her children. [47] Based on the evidence before me, I am unable to determine whether TNP or JP is telling the truth.

This raises the issue ofwhether it is necessary or appropriate to hold a viva voce hearing or take other steps, such as obtaining expert evidence, to resolve theconflicting evidence. I conclude that it is not necessary or appropriate because the risk of physical or psychological harm can bemitigated by ordering undertakings until this issue and other issues relevant to the custody of the children are determined by the court inPennsylvania.

[ 48 ] TNP submits that JP will violate any court-ordered restrictions placed on him and will seek to contact her and the children if they are returned. In support, TNP points to JP’s violation of the Alberta EPO. [ 49 ] I reject this argument that JP will inevitably seek to violate any protective orders he is subject to in Pennsylvania. The alleged violation of the Alberta EPO, if true, is minor and technical in nature.

JP does not have a history of disregarding court orders, and he has indicated a willingness to consent to a “no contact” order with TNP in Pennsylvania. [ 50 ] A case management meeting preceded the Alberta hearing of JP’s return application. Judge Doerr of the Butler County Court of Common Pleas in Pennsylvania attended the meeting by teleconference, as did Pennsylvania counsel for both parties. Pennsylvania counsel for JP also attended the hearing of the return application, again by teleconference.

Information provided as a result of these attendances made it clear that there are ample procedures and resources to provide protection to TNP and the children in Pennsylvania. Spouses and children are given automatic access to emergency shelters at no cost to them if they file a Petition for Protection from Abuse. Counselling and support services are also available. [ 51 ] TNP has not met her burden to demonstrate that the children will be exposed to an intolerable and grave risk of physical and psychological harm under

Article 13(

b) of the Hague Convention . The children must therefore be returned to Pennsylvania. However, the return must be subject to conditions to ensure the children’s safety as they transition back to their place of habitual residence. Conditions [ 52 ] Courts may impose conditions that must be met before ordering the children to be returned to their habitual place of residence under the Hague Convention .

Conditions should only be ordered when necessary to ensure the children’s safety and well-being in the short time between when they are returned to their place of habitual residence and when the courts and authorities there are able to deal with the substantive matter: Thomson . In this case, as there is a possibility that JP poses a threat to his children, several conditions must be met to secure their safety. [ 53 ] JP has undertaken to enter into a “no contact” order with TNP upon her return to Pennsylvania.

In the circumstances, this is appropriate, and I order that JP and TNP enter into a “no contact” order by consent with the courts in Pennsylvania prior to TNP’s return. However, JP also requests that the children be returned to him in accordance with the interim custody order granted by Judge Doerr of the Butler County Court of Common Pleas. In light of the allegations and evidence of abuse, I find that JP should not be given interim custody immediately upon the children’s return.

Rather, the children should remain in TNP’s custody until the court in Pennsylvania has an opportunity to consider these allegations and other issues relevant to custody of the children on a final or interim basis. [ 54 ] JP’s counsel in Pennsylvania informed the Court that it is possible for TNP to file a “Petition for Protection from Abuse” with the Pennsylvania court. Upon the filing of the Petition, immediate “no contact” conditions are imposed until the merits of the application can be determined.

Further, petitioners who lack resources to pay for their own alternate accommodation are provided access to a publicly-funded shelter, which can also accommodate children. [ 55 ] TNP will be given an opportunity to file a Petition for Protection from Abuse prior to her and the children’s return to Pennsylvania. This must be done within one week of the date of this Order. [ 56 ] It appears that TNP and the children require accommodations in a publicly-funded shelter, which must be secured before they are returned to Pennsylvania.

TNP, with the assistance of Pennsylvania authorities, must make arrangements for accommodations for her and the children at a women’s shelter in Pennsylvania forthwith, following the filing of the Petition for Protection from Abuse. [ 57 ] TNP is concerned that JP may violate a court ordered “no contact” restriction. I have found that there is no evidence that JP will inevitably disregard a court-ordered restriction. However, given the serious nature of the allegations, it is appropriate to impose some safeguards to help ensure TNP’s and the children’s safety.

JP must not be notified of where TNP and the children are residing upon their return to Pennsylvania, until a court in Pennsylvania has an opportunity to assess whether this restriction is necessary on an on- going basis. TNP must inform JP’s counsel when she has secured a place in a shelter, but is not required to disclose the address of the shelter where she and the children will be staying.

On an interim basis, JP is to have no contact with TNP and the children other than ongoing Skype access with the children as provided in the EPO. [ 58 ] TNP is, and has been since the birth of L, a full-time care-giver to her children. She is not employed outside the home, while JP is. It is therefore appropriate that JP pay the cost of flights for TNP and the children to return to Pennsylvania. Once TNP has informed JP’s counsel that a space has been secured in a shelter, JP must book and pay for the flights for TNP and the children to ensure they arrive in Pennsylvania no later than December 31, 2016.

TNP and the children must return to Pennsylvania on the flights booked for them. [ 59 ] JP must also pay interim support to TNP in an amount to allow her to purchase necessities for the children. JP’s evidence is that he lacks the means to pay for alternate accommodation for TNP and the children, which is why TNP must seek accommodation in a publicly-funded shelter. This interim support is limited to incidentals that may be required for the children pending determination of support by the Pennsylvania court.

Subject to agreement by the parties, or further submissions, I direct the payment of interim support in the amount of $500. [ 60 ] The foregoing conditions are to be implemented by both parties, through their counsel, providing appropriate undertakings to this Court. The parties have agreed to file a consent order in Pennsylvania incorporating the undertakings and providing for their enforcement in Pennsylvania on an interim basis. Emergency Protection Order

[ 61 ] Given the ongoing concerns about the potential for further abuse, it is necessary to extend the EPO until the children are returned to Pennsylvania. I order that the EPO be extended under the same terms and conditions until TNP and the children return to Pennsylvania, or December 31, 2016, whichever is sooner. Conclusion [ 62 ] I order that the children be returned to Butler County, Pennsylvania, subject to the undertakings and conditions already described. The parties may return for a further hearing regarding particulars of the undertakings and conditions, if issues arise and they are unable to agree.

They may also speak to me regarding costs if they are unable to agree. Heard on the 18 th day of October, 2016. Dated at the City of Edmonton, Alberta this 1 st day of November, 2016. J.M. Ross J.C.Q.B.A. Appearances: Joanne M. Huedes, Law on Main Kristen Batson Eberle, Boyer Paulisick & Eberle (by phone) for the Applicant Susan J. Rawlings, Ackroyd LLP for the Respondent