r v. Balev, 2022 NLCA 33

K.F. (appellant/respondent) v. J.F. (respondent/appellant) (21/71 and 21/72) Indexed As: K.F. v. J.F. 2022 NLCA 33 7 C.A.N.L.R. 609 Court of Appeal of Newfoundland and Labrador Hoegg, Goodridge and Knickle JJ.A. May 26, 2022

Summary: The application of the Hague Convention (Convention on the Civil Aspects of International Child Abduction) was at issue in this appeal. The child had lived in Massachusetts, U.S.A. until she and her mother moved to this Province during school closures as a result of thepandemic. When the schools re-opened, the mother refused to return the child to her former residence as requested by the father. The father’s application under the Hague Convention for return of the child was granted by the family court judge. The mother appealedthat order. Held: Appeal allowed.

Hoegg J.A. (Knickle J.A. concurring) (Goodridge J.A. dissenting): The majority found that the seven year old child had been integratedinto the environment and social fabric of St. John’s and had settled into a secure and stable family life with her mother and extendedfamily. Accordingly, the child’s habitual residence had changed from Boston to St. John’s. Goodridge J.A., dissenting, found that the mother’s submission that the child remain in Canada would run counter to

article 12 of theHague Convention. He would have ordered the return of the child, subject to conditions that would facilitate the child’s transition. Cases cited: Hoegg J.A. (Knickle J.A. concurring): Thomson v. Thomson, (SCC), [1994] 3 S.C.R. 551 J.M. v. I.L., 2020 NBCA 14 Singh v. Kaur, 2022 MBQB 46 Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398 A. v. A. (Children: Habitual Residence), [2013] UKSC 60 O.L. v. P.Q. (2017), C-111/17 (C.J.E.U.) Monasky v. Taglieri, 589 U.S. ___ (2020) (USSC) ___________________________________ Application for leave to appeal filed, 40321 (August 15, 2022)

Beairsto v. Cook, 2018 NSCA 90 The Petition of F against M, [2021] CSOH 90 (Scot. Ct. Sess.) Ludwig v. Ludwig, 2019 ONCA 680 A.M. v. A.K., 2020 ONSC 3422 Allibhoy v. Tabalujan, 2015 BCSC 37 Whitting v. Krasser, 391 F. (3d) 540 (3rd Cir. 2004) Gadea v. Rath, 2022 MBQB 5 Batten v. Batten, 2021 BCSC 2507 Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention), [2020] EWCA Civ 1105 In re B (A Child) (Reunite International Child Abduction Centre and Others Intervening), [2016] UKSC 4 Ludwig v. Ludwig, 2019 ONSC 50 Gosse v.

Sorensen-Gosse, 2011 NLCA 58, 311 Nfld. & P.E.I.R. 76 Canada (Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 Knight v. Gottsman, 2019 ONSC 4341 Korutowska-Wooff v. Wooff, 2004 ONCA 5548 Chan v. Chow, 2001 BCCA 276 Bačić v. Ivakić, 2017 SKCA 23 Salvatore v. Medeiros, 2021 ONSC 1488 Gavriel v. Tal-Gavriel, 2015 ONSC 4181 D.R. v. A.A.K., 2006 ABQB 286 C.B. v. B.M., 2021 ABCA 266 Finizio v. Scoppio-Finizio, (ON CA), [1999] O.J. No. 3579, 179 D.L.R. (4th) 15 (Ont. C.A.) Ares v. Venner, (SCC), [1970] S.C.R. 608 R. v.

C.B., 2019 ONCA 380 Zafar v Saiyid, 2018 ONCA 352 Graat v. The Queen, (SCC), [1982] 2 S.C.R. 819 R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 A.H. v. R.B., 2022 NLCA 9 Madsen Estate v. Saylor, 2007 SCC 18, [2007] 1 S.C.R. 838 John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27 Matchim v. BGI Atlantic Inc. et al., 2010 NLCA 9, 294 Nfld. & P.E.I.R. 46 Medic v. Medic, 2020 ONSC 6447 Goodridge J.A. (dissenting): Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398 R. v. Gerrard, 2022 SCC 13 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235

Courtney v. Cleary, 2010 NLCA 46, 299 Nfld. & P.E.I.R. 85 H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 Monasky v. Taglieri, 589 U.S. ___ (2020) (USSC) O.M. v. E.D., 2019 ABCA 509 Nova Scotia (Community Services) v. N.N.M., 2008 NSCA 69 Beson v. Director of Child Welfare (Nfld.), (SCC), [1982] 2 S.C.R. 716 R. v. Samaniego, 2022 SCC 9 Cooper v. Cooper, 2001 NFCA 4, 198 Nfld. & P.E.I.R. 1 R. v. Sullivan, 2020 NLCA 5 A.H. v. R.B., 2022 NLCA 9 Thomson v. Thomson, (SCC), [1994] 3 S.C.R. 551 Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (Eng. C.A.) Batten v.

Batten, 2021 BCSC 2507 Silva v. da Silva, 2018 BCSC 788 Ares v. Venner, (SCC), [1970] S.C.R. 608 Wright v. Sun Life Assurance Company of Canada, 2019 BCCA 18 Graat v. The Queen, (SCC), [1982] 2 S.C.R. 819 Compton v. Toyota Canada Inc., 2019 NLCA 79 R. v. Krawchuk, (SCC), [1941] 2 D.L.R. 353, 75 C.C.C. 219, (S.C.C.) Ambrose v. The Queen, (SCC), [1977] 2 S.C.R. 717 Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1 S.C.R. 369 F.F.R. v. K.F., 2013 NLCA 8, 332 Nfld. & P.E.I.R. 262 Finizio v.

Scoppio-Finizio, (ON CA), [1999] O.J. No. 3579, 179 D.L.R. (4th) 15 (Ont. C.A.) Statutes considered: Hoegg J.A. (Knickle J.A. concurring): Children’s Law Act, RSNL 1990, c. C-13,

section 54 Goodridge J.A. (dissenting): Children’s Law Act, RSNL 1990, c. C-13, section 54(2) Rules considered: Hoegg J.A. (Knickle J.A. concurring): Supreme Court Family Rules, rules F38.03, F38.10, F37.01, F1.05, being

Part IV of the Rules of the Supreme Court, 1986, SNL 1986, c.42,

Schedule D Other:

Hoegg J.A. (Knickle J.A. concurring): Convention on the Civil Aspects of International Child Abduction, Can T.S. 1983 No. 35, articles 1, 3, 4, 25, 12, 13, 16, 9, 11 Goodridge J.A. (dissenting): Convention on the Civil Aspects of International Child Abduction, Can T.S. 1983 No. 35, articles 13, 3, 26, 12 Counsel: Jean V. Dawe Q.C., for the appellant/respondent; Andrew A. Fitzgerald Q.C. and Sarah M. Learmonth, for the respondent/appellant. The appeal was heard on February 10, 11 and 17, 2022 before Hoegg, Goodridge and Knickle JJ.A.

The following judgment was filed on May 26, 2022 by Hoegg J.A. and concurred in by Knickle J.A., with separate dissenting reasons byGoodridge J.A. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [1] This appeal concerns whether a seven-year-old girl is habitually resident in Boston, Massachusetts or St. John’s, Newfoundlandand Labrador. [2] This question is governed by the Convention on the Civil Aspects of International Child Abduction, Can T.S. 1983 No. 35(“Convention”), which is incorporated into Newfoundland and Labrador law by virtue of

section 54 of the Children’s Law Act, RSNL1990, c. C-13. The Convention, often referred to as the Hague Convention, is an international multilateral treaty to which Canada andthe United States are signatories and between whom the Convention is in effect.

Article 1 of the Convention describes its objects asbeing: “(

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

b) to ensure that rightsof custody and of access under the law of one Contracting State are effectively respected in the other Contracting States”. [3] The term “habitually resident” is found in articles 3, 4, and 25 of the Convention.

The term is not defined in the Convention,although its determination is critical to the resolution of a Convention application. [4] When an application is filed under the Convention for the return of a child to a particular jurisdiction, the court must determinewhether the child was wrongfully removed from the return jurisdiction or wrongfully retained in the present jurisdiction (Convention, atarts. 3, 12). If there is no wrongful removal or retention, there can be no return order.

The determination is two-fold; it depends on (1)whether the applicant was exercising custodial rights at the time of the alleged wrongful retention or removal of the child, and (2) thelocation of the child’s habitual residence immediately before the alleged wrongful removal or retention (Convention, at arts. 3, 4;Emphasis added.). If a court determines that the applicant was not exercising custodial rights or that the child’s habitual residence is notthe return jurisdiction, then no return order is granted (Convention, at arts. 3, 13(a)).

However, if a court determines that an applicantwas exercising custodial rights over the child and that the return jurisdiction is the child’s habitual residence, the removal from the returnjurisdiction or retention in the present jurisdiction is wrongful, and an order that the child be returned to the jurisdiction of the child’shabitual residence is granted. Even when it is determined that the applicant was exercising custodial rights and the return jurisdiction isthe child’s habitual residence, there are exceptions that could preclude the granting of a return order (Convention, at arts. 12-13).

TheConvention ceases to apply when a child reaches 16 years of age (art. 4). [5] A defining feature of Convention proceedings is that they are not custody proceedings (Convention, at art. 16). A narrow andtime-limited exception to this appears to exist in Canadian jurisprudence respecting temporary transitional measures that may involveparenting (custody and access). Such measures can be put in place by a court exercising its parens patriae jurisdiction while ordering achild to be returned to the jurisdiction of their habitual residence (Thomson v. Thomson, (SCC), [1994] 3 S.C.R. 551;J.M. v.

I.L., 2020 NBCA 14, at para. 40; and Singh v. Kaur, 2022 MBQB 46). BACKGROUND [6] J.F. (the father) and K.F. (the mother) met in Boston a couple of years before marrying in St. John’s in 2011. They returned toBoston, where they lived in a condominium owned by the mother and her sister. The father is a self-employed sales agent of supplies toprofessional sports teams and the mother is an occupational therapist. She was employed in the Boston public school system at the timeof trial but was no longer so employed at the time of the appeal hearing. [7] V was born in 2014 and is the only child of the marriage.

When she was two years old, her mother was diagnosed with

aggressive bladder cancer. She underwent surgeries and chemotherapy, and continues to manage her condition. The mother characterized her marriage as emotionally abusive, and the evidence establishes that she has availed of intimate partner abuse counselling from November 2017 until the time of trial in 2021 (Decision, at paras. 104-105). [ 8 ] In the spring of 2020, both the mother and the father were working remotely from home due to the Covid-19 pandemic. As well, V was attending school remotely from home. Although the pandemic precluded V and her mother’s usual summer trip to visit the mother’s family in St.

John’s, the mother obtained special permission for V and her to come to St. John’s due to her father’s health crisis. They arrived on July 25, 2020. Later that summer, the Boston Public School System declared it would remain closed to in-person learning. V’s parents had concerns about V continuing to attend school remotely in Boston, so they decided that V and her mother would stay in St. John’s until the Boston schools reopened to in-person learning. That way, V could attend school in-person and her mother could work remotely from St. John’s. [ 9 ] V’s father joined his wife and daughter in St.

John’s in November 2020, driving from Boston so as to bring the mother her car. Because his work is more amenable to virtual contact in the winter than at other times of the year, he was also able to work remotely from St. John’s. The family was together in St. John’s until the end of March 2021, when the father returned to Boston. He drove back to St. John’s for the month of June 2021 to be there for V’s birthday. [ 10 ] While V was in St. John’s from July 25, 2020 until the time of trial, she lived together with her mother, her maternal grandparents, and her father when he was there.

Although registered for school in Boston, V began grade one in person at an elementary school in St. John’s in September 2020. In April 2021, when the Boston schools opened to in-person learning, V’s parents decided it would be better for her to finish her school year in St. John’s rather than return to Boston. When the school year finished, V and her mother stayed in St. John’s for their usual summer visit.

The father’s understanding was that his wife and child would return to Boston in late August because the Boston schools were open to in-person learning, and that V would be able to visit her paternal grandparents in Florida before school started. [ 11 ] V adapted well to life in St. John’s. She integrated and performed very well at her school according to her report cards, and made friends.

She also participated in several in-person extra-curricular and community activities including dance, music, swimming and tennis lessons, went to Sunday school, and enjoyed contact with her cousins and other extended family members. In short, she had a stable daily life with the benefit of much family and social contact. [ 12 ] During V’s time in St. John’s, her social connections with Boston were minimal. According to the submissions, she had a single remote playdate in the fall of 2020 with her Boston school friend A.

She took music lessons through the Brookline School of Music which operates out of Boston, although V’s music teacher was teaching remotely from California. [ 13 ] On July 30, 2021, V’s mother told her husband in a telephone call that she would not be returning to Boston to live. She advised him that she had filed for divorce in the Family Division of the Supreme Court of Newfoundland and Labrador, and that she was seeking joint parenting of V with her primary residence to be with her mother in St.

John’s, and significant parenting time for the father (previously known as liberal access). [ 14 ] On August 24, 2021, the father filed a Convention application seeking V’s return to Boston. He alleged that V was wrongfully retained in St. John’s on the basis that he was exercising his custodial rights over her and that her habitual residence was Boston. V’s mother opposed the application, arguing that V’s habitual residence had changed from Boston to St. John’s in the preceding year.

The mother also argued that ordering V to return to Boston would subject her to a grave risk of harm or an otherwise intolerable situation, and claimed the exception set out in

article 13(

b) of the Convention . [ 15 ] Upon receipt of the father’s application, the Family Division of the Supreme Court set the matter for trial forthwith. The trial began on September 27, 2021, and was heard over 12 days between then and October 20, 2021. On November 8, 2021, the Judge rendered her decision. She ruled that V’s habitual residence was Boston, and dismissed the mother’s

article 13(

b) claim. The Judge ordered V’s return to Boston on or before November 16, 2021. [ 16 ] V’s mother appealed the Judge’s return order and applied for a stay, which I granted on December 14, 2021. The appeal was heard on February 10, 11, and 17, 2022. The Judge’s Decision [ 17 ] The Judge concluded that Boston was V’s habitual residence on the basis that V’s parents had “maintained their connections and the child’s to Boston and exhibited a settled intention to remain habitual residents of Boston”, and ruled that V had been wrongfully retained in St. John’s as of July 30, 2021 (Decision, at paras. 89-91). [ 18 ] The Judge dismissed the mother’s

article 13(

b) claim, ruling that V was not at grave risk of psychological harm nor would she be put into an intolerable situation by being ordered to return to Boston, and that the mother had not met the stringent threshold for an

article 13(

b) exception as described in Thomson (Decision, at para. 145 ). The Appeal [ 19 ] V’s mother argues several grounds of appeal. Principal among them is that the Judge erred by failing to apply the correct law in deciding V’s habitual residence. The mother argues that the Judge treated “parental intention” as the paramount and determining factor in her analysis respecting V’s habitual residence and that in so doing she failed to consider all of the circumstances in play immediately before the date of V’s alleged wrongful retention.

The mother maintains that the Judge’s failure to focus on V’s family and social environment immediately prior to July 30, 2021 caused her to fail to recognize that V’s habitual residence had changed. The mother also argues that the Judge erred in dismissing her

article 13(

b) claim that V would be subject to a “grave risk of harm” or an “intolerable situation” if she were ordered to return to Boston for a determination of custody. [ 20 ] Further, the mother maintains that the Judge misapprehended, ignored, and/or rejected relevant evidence pertaining to the

article

13(

b) claim, and argues that the Judge erred by failing to admit into evidence the mother’s records from the Massachusetts General Hospital and by unduly restricting Dr. David Philpott’s evidence. [ 21 ] V’s mother also argues that the Judge’s incorrect evidentiary rulings and unreasonable credibility findings, in addition to her conduct of the trial generally, were manifestly unfair to her. She submits that the Judge’s conduct of the trial raises issues of trial fairness and pre-judgment leading to a reasonable apprehension of bias.

She maintains that the Judge’s errors should cause this Court to vacate the return order and dismiss the father’s Convention application. [ 22 ] For the reasons that follow, I agree that the Judge erred in law in determining that V’s habitual residence was in Boston and thereby concluding that V was wrongfully retained in St. John’s. Simply put, the Judge failed to focus on the focal point of V’s life immediately before the date of her alleged wrongful retention, as directed by Office of the Children’s Lawyer v. Balev , 2018 SCC 16 , [2018] 1 S.C.R. 398 .

Instead the Judge focused on parental intention and the circumstances of V’s parents in deciding that V’s habitual residence was Boston. Accordingly, the Judge’s order returning V to Boston must be vacated. THE LAW [ 23 ] The Supreme Court of Canada established the law governing the determination of a child’s habitual residence in Balev . Prior to Balev , the determination of a child’s habitual residence was made on the basis of parental intention ( Balev , at para. 40 ). In Balev , the Supreme Court of Canada charted a new course.

In Balev , McLachlin C.J.C. explained that the focus of Canadian courts on parental intention as the primary consideration in deciding a child’s habitual residence was problematic and should be abandoned in favour of a hybrid approach ( Balev , at paras. 45-48 ). She stated that other signatory countries with which Canada has close ties, such as the United Kingdom, Australia, and New Zealand, as well as the European Union, had abandoned or moved away from the parental intention approach in favour of the hybrid approach ( Balev , at para. 50 ).

Chief Justice McLachlin explained that the domestic law of signatory states should reflect agreed-upon rules, practices, and principles for

interpretation and application of the provisions of the Convention that harmonize the signatories’ domestic laws ( Balev , at para. 33 ), and that the hybrid approach supports the principle of harmonization respecting international treaties ( Balev , at para. 48 ). She went on to say that the hybrid approach “best conforms to the text, structure, and purpose of the Hague Convention ” ( Balev , at para. 71 ), and best fulfills the goals of prompt return to the appropriate jurisdiction to determine custody ( Balev , at para. 59 ).

She also noted that the hybrid approach often accords with the law respecting “ forum conveniens ” ( Balev , at para. 64 ). [ 24 ] The Chief Justice concluded that the hybrid approach represents a principled advance on the parental intention and child- centered approaches, in that it recognizes that the child is the focus of the analysis, while acknowledging that many factors, including but not limited to parental intention, inform the child’s habitual residence ( Balev , at para. 68 ).

The Hybrid Approach [ 25 ] The Court in Balev stated that in deciding a child’s habitual residence, the Judge must determine the focal point of the child’s life immediately prior to the alleged removal or retention. This is done by focusing on the factual connections between the child and the jurisdictions in question, including how the child came to be in the present jurisdiction ( Balev , at para. 43 ).

The judge must consider all relevant links and circumstances ( Balev , at para. 43 ), which include, but are not limited to, “the duration, regularity, conditions and reasons” for the child’s stay in the present jurisdiction ( Balev , at para. 44 ). The Court stated that no single factor dominates the analysis ( Balev , at para. 44 ), and that the focus is on the “entirety of the child’s situation” (para. 47), and that “all relevant factors” (para. 65) are to be considered.

The Role of Parental Intention in the Balev Framework [ 26 ] Under the hybrid approach, parental intention alone does not determine a child’s habitual residence. Rather, it is one factor among the several to be considered.

In Balev , Chief Justice McLachlin acknowledged that the circumstances of the parents and their intentions may be important, but at the same time cautioned against over-reliance on them in determining a child’s habitual residence: [45] The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children: see Mercredi , at paras. 55-56; A. v. A. (Children: Habitual Residence) , [2013] UKSC 60 , [2014] A.C. 1 , at para. 54 ; L.K. , at paras. 20 and 26-27. However, recent cases caution against over-reliance on parental intention.

The Court of Justice of the European Union stated in O.L. that parental intention "can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence": para. 46. It "cannot as a general rule by itself be crucial to the determination of the habitual residence of a child ... but constitutes an 'indicator' capable of complementing a body of other consistent evidence": para. 47.

The role of parental intention in the determination of habitual residence "depends on the circumstances specific to each individual case": para. 48. [ 27 ] As noted in the above quote, Chief Justice McLachlin referenced A. v. A. (Children: Habitual Residence) , [2013] UKSC 60, at para. 54, and O.L. v. P.Q. (2017), C-111/17 (C.J.E.U.). It bears repeating that the United Kingdom Supreme Court and the Court of the European Union have both rejected parental intention as the controlling factor in the determination of a child’s habitual residence. In A. v.

A. , Lady Hale stated that determination of a child’s habitual residence focuses on the situation of the child, with the purposes and intentions of the parents “being merely one of the relevant factors” (para. 54). Likewise in O.L. , the Court stated that “the habitual residence” of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment” established by “taking account of all the circumstances of fact specific to each individual case” (para. 42). The Supreme Court of the United States is of similar mind, ruling in Monasky v.

Taglieri , 589 U.S. ___ (2020)(USSC), that a child’s habitual residence is where she is “at home” and “depends on the totality of the circumstances specific to the case” (Syllabus 1(a)). [ 28 ] In Beairsto v. Cook , 2018 NSCA 90 , the Nova Scotia Court of Appeal overturned a trial court decision to return a child to Washington State (from Nova Scotia). The trial court had determined the child’s habitual residence on the basis of the parents’ former intention to raise their child in Washington State.

Although the case had been decided just before Balev was released, the appellate court overturned the trial decision, applied the law as set out in Balev , and ruled that the child’s habitual residence was Nova Scotia on the basis that the child “had become integrated into the family and social environment in Nova Scotia” (para. 120).

[ 29 ] In J.M. , the New Brunswick Court of Appeal upheld a trial judge’s decision that the child’s habitual residence was New Brunswick, where she had been living with her mother for a year, despite the parents’ previous intention to live together as a family and raise their child in Texas ( J.M. , at para. 16 ). The appellate court ruled that the trial judge had correctly applied the law as stated in Balev , and dismissed the father’s application to return the child to Texas. [ 30 ] This was also the conclusion of Lady Wise in The Petition of F against M , [2021] CSOH 90 (Scot. Ct.

Sess.), which involved two young children who had lived in Scotland with their parents for a year before the father decided that he wanted to move back to New Zealand as the parents had previously agreed to do.

The Court concluded that the habitual residence of the children had changed to Scotland during the year they spent there. [ 31 ] The above cases illustrate that, notwithstanding one or both parents’ intentions that their child’s habitual residence was the return jurisdiction, the overriding concern is the focal point of the child’s life immediately before the alleged wrongful retention – not parental intention. In

summary, it cannot be overstated that in adopting the hybrid approach, the Supreme Court of Canada directs that parental intention is no longer the lens through which the habitual residence of a child is determined. It is one among all of the factors to be considered, depending on the particular circumstances at issue. Time-limited Consents [ 32 ] Balev also addresses the thorny aspect of parental intention that arises when a child is in the present jurisdiction for a time- limited stay with the applicant’s consent.

Balev stipulates that while time-limited agreements setting out how long a child can stay in the present jurisdiction may be relevant, they do not usurp a court’s duty to determine a child’s habitual residence and whether the child’s retention is wrongful (paras. 72-73). In other words, Balev explicitly rejects the notion that parents can directly or by virtue of their previous intentions contract out of a court’s duty to determine a Convention application; the child’s habitual residence is for the court to decide.

Balev also rejects the notion that one parent cannot unilaterally change a child’s habitual residence (para. 46).

The Chief Justice explained that legal constructs that strictly dictate the impact of time-limited consents and unilateral moves detract from the court’s duty to consider where a child’s habitual residence is immediately before the alleged wrongful retention on the basis of all of the relevant circumstances. [ 33 ] The Supreme Court of the United States in Monasky also addressed agreements made by parents respecting where their children would be raised, holding that a “child’s habitual residence depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents.

Pp. 7-14” (Syllabus, 1). See also A. v. A., at para. 39; and F against M , at para. 23. [ 34 ] Consents to time-limited stays were considered by the Ontario Court of Appeal in Ludwig v. Ludwig , 2019 ONCA 680 . In Ludwig , the Court explicitly stated that Balev represents a rejection of legal constructs such as “one parent’s unilateral actions are incapable of changing a child’s habitual residence” and “a child’s habitual residence could not change in the case of time-limited travel that both parents agreed to” ( Ludwig , at para. 28).

The appellate Court upheld the trial Court’s decision that the habitual residence of the Ludwig children was Ontario, despite the parents’ prior agreement that they would return to Germany after a specific time. [ 35 ] In following the law respecting parental agreements established in Balev and Ludwig , the Ontario Superior Court in A.M. v. A.K. , 2020 ONSC 3422 , put it this way: [40] The Father's position is that a significant weight should be given to the parties' intent to return to Australia.

The Father is asking the Court to consider a handwritten agreement signed by the parties in 2017, wherein the parties agreed to return to Australia after the Mother completed her training. He acknowledges the agreement is not enforceable but that it provides strong evidence as to the parties' intention at that time. He submits that the court should give significant weight to this factor because the parties had already participated in a Hague Application in 2012 and therefore understood the importance of agreements and intentions.

So, what weight should be given to the parties' intent and could this factor outweigh the significant link the children have to Ontario? In concluding that the children’s habitual residence was Ontario, and not Australia as the parents had previously agreed, the Judge stated: [42] The hybrid approach requires the court to evaluate all the relevant circumstances of the case.

If I were to give undue weight to the parents' intentions in the case before me, I would be ignoring the decisions in Balev and Ludwig by reverting back to the once dominant "parental intention approach"… See also F against M , at paras. 16-23, for a full discussion on how time-limited stays and parental agreements inform the analysis of habitual residence.

The Significance of the Age of the Child in the Balev Framework [ 36 ] In Balev , the Court also recognized that the age of a child informs the analysis, saying: [44] … Relevant considerations may vary according to the age of the child concerned; where the child is an infant, "the environment of a young child 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": O.L. v. P.Q.

(2017) C-111/17 (C.J.E.U.), at para. 45. and at the same time noting that the Convention provides for the views of a sufficiently mature child to be considered ( Convention , at art. 13(2)). These provisions recognize that as children mature, they develop their own connections to a jurisdiction, independent of those of their parents. In other words, the older a child is, the more their own connections matter and the less their parents’ intentions matter. That a child can develop their own connections to a jurisdiction is also recognized in the Convention in circumstances where

article 12 applies. [ 37 ] The British Columbia Supreme Court case Allibhoy v. Tabalujan , 2015 BCSC 37 , at para. 48 , quoting from the American case Whiting v. Krassner , 391 F. (3d) 540 (3rd Cir. 2004), recognized the significance of age in relation to four year-old Evan and roughly

one and a half year-old Christina: … In recognizing acclimatization as an element of habitual residency in Feder , we were attempting to develop a definition of habitual residence which would comport with one of the main objectives of The Hague Convention — i.e., restoring the child to the status quo before the abduction. We recognize that this goal is crucial when the child involved is not only cognizant of his or her surroundings, but also of an age at which it is able to develop a certain routine and acquire a sense of environmental normalcy.

A four-year-old child, such as Evan Feder, certainly has this ability. A child of such age is not only aware of those around him, but is able to form meaningful connections with the people and places he encounters each day. A very young child, such as Christina, does not have such capability. Therefore, her degree of acclimatization in Canada is not nearly as important to our determination of habitual residence as are her parents' shared intentions as to where she would live during her formative years. … [ 38 ] In Gadea v.

Rath , 2022 MBQB 5 , the Manitoba Superior Court recognized the ability of a young child to form meaningful connections to an environment in the context of a child being “settled in” to its new environment within the meaning of

article 12 of the Convention . In Gadea , the Court rejected a mother’s Convention application and accepted the father’s position that their three-year-old child had formed her own connections to her present jurisdiction in the 21 months she had spent there immediately before the date of her alleged wrongful retention: 75 Further, I accept the father's evidence that the child has "settled in" to her life in Manitoba. The child, a citizen of Canada, has resided in Manitoba for 21 months, more than half of her life.

She has been seeing a doctor in Manitoba since August 17, 2020, she has had a Social Insurance Number since May 26, 2021, she has attended pre-school since November 9, 2021, and she has formed close bonds with her paternal relatives, which include her grandparents, aunts, uncles and cousins, as well as friends in the neighborhood and classmates. She is an active three-year-old involved in a number of age-appropriate activities. She has settled into her life in Canada. [ 39 ] Although these statements are made in the context of

article 12 of the Convention , they are relevant in that

article 12 recognizes that a child may become integrated in a jurisdiction as time passes. This was recognized by Chief Justice McLachlin in Balev , and explains in part the move away from parental intention as determining a child’s habitual residence. [ 40 ] In Batten v.

Batten , 2021 BCSC 2507 , the British Columbia Supreme Court recognized that the length of time spent in a present jurisdiction can matter, but was not convinced that the five year-old child had formed substantial links to her present jurisdiction in the five weeks before the date of her alleged wrongful retention: [27] Although S.B. remained in Canada for approximately five weeks prior to September 1, 2020 — the date I have found she was wrongfully retained in Canada — I agree with the submission of Mr. Batten that, during this time, she did not develop substantial links to BC.

There is evidence suggesting that, over time, S.B. began to develop connections in Canada by starting school, playing soccer, swimming, tap dancing, and visiting regularly with her maternal grandparents. However, I am not satisfied that these connections had formed prior to September 1, 2020. [ 41 ] See also Monasky , at 8-9. [ 42 ] It is clear from the cases that there is no rigid line to be crossed in order for even a very young child’s connections to a place to weigh in an analysis of habitual residence.

The Significance of the Words “immediately before” in Articles 3 and 4 [ 43 ] Something must be said about the words “immediately before” found in articles 3 and 4 of the Convention . The words refer to the time of the alleged wrongful abduction or retention, and thereby pertain to the point in time when all of the circumstances relating to the child’s situation for the purpose of determining the child’s habitual residence must be considered. [ 44 ] Language in governing legislation, which in this case is an international treaty, is presumed to be used deliberately, and for a specific purpose.

As was recently confirmed in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , “the words of a statute must be read in their entire context, and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (para. 117). This type of analysis was carried out by Chief Justice McLachlin in Balev , and informed her ruling that a child’s habitual residence is what it was immediately before the date of the alleged wrongful removal or retention, as determined by a judge ( Balev , at paras. 36, 43 ).

In short, what matters are the child’s connections to the respective jurisdictions immediately before the alleged wrongful removal or retention. While historical connections may be relevant, it is neither reasonable nor appropriate to interpret immediately before as applying to an historical time, or to make light of or ignore these words. [ 45 ] Lord Justice Moylan’s reasoning in M (Children) (Habitual Residence : 1980 Hague Child Abduction Convention) , [2020] EWCA Civ 1105, illustrates the need to be careful to avoid simply pitting one jurisdiction against the other on the basis of time spent.

In referencing Lord Wilson’s “see-saw analogy” from In re B (A Child) (Reunite International Child Abduction Centre and Others Intervening) , [2016] UKSC 4, at para. 45, Lord Moylan said: [62] Further, the analogy needs to be used with caution because if it is applied as though it is the test for habitual residence it can, as in my view is demonstrated by the present case, result in the court’s focus being disproportionately on the extent of a child’s continuing roots or connections with and/or on an historical analysis of their previous roots or connections rather than focusing, as is required, on the child’s current situation (at the relevant date).

This is not to say continuing or historical connections are not relevant but they are part of, not the primary focus of, the court’s analysis when deciding the critical question which is where is the child habitually resident and not, simply, when was a previous habitual residence lost. (Emphasis in Original) [ 46 ] The significance of a child’s historical roots in a jurisdiction to the determination of habitual residence was also addressed in Ludwig . Despite the Ludwig children having lived in Germany for many years before moving to Canada 13 months prior to their father’s

Convention application, the Court at trial found their habitual residence to be Ontario, because their experiences in Canada were “morecurrent and immediate and over an appreciable period of time” (Ludwig v. Ludwig, 2019 ONSC 50, at para. 93 [Ludwig, (ONSC)]). Asnoted above, the trial decision was upheld on appeal. The Role of Timeliness in Determining a Convention Application [47] The importance of timeliness in court proceedings determining a Convention application must be noted, as Chief JusticeMcLachlin did in Balev at paras. 82-89. Articles 9 and 11 of the Convention, and rules F38.03 and F38.10 of the Supreme Court FamilyRules, being

Part IV of the Rules of the Supreme Court, 1986, SNL 1986, c. 42,

Schedule D, clearly direct that Convention applicationsare to be decided expeditiously. However, expeditiousness should not come at the expense of fairness, as rule F37.01 provides. Further,even timeliness is contextual. Cases of abduction, or a parent absconding with a child to a far flung jurisdiction, are arguably moreurgent than a case where a child has been in a present jurisdiction for an extended period of time with the consent of the applying parent. STANDARD OF REVIEW [48] The standard of review in family law cases is well established. In

summary, questions of law are reviewed on a standard ofcorrectness, and questions of fact, or mixed fact and law, are reviewable on the standard of palpable and overriding error, unless there isan extricable principle of law involved, in which case the standard respecting that issue is correctness.

Deference must be shown to ajudge’s discretionary decisions, unless the judge exceeded jurisdiction, has failed to apply or misapplied an applicable principle, or madea palpable and overriding error in appreciating the facts, or the Court’s failure to intervene would cause a manifest injustice (Gosse v.Sorensen-Gosse, 2011 NLCA 58, 311 Nfld. & P.E.I.R. 76, at paras. 17-19).

ANALYSIS Did the Judge err by applying the wrong law to her determination of V’s habitual residence? [49] In my view, the determination of a child’s habitual residence is a question of mixed fact and law, as legal principles apply to sucha determination. Whether it is a question of fact or mixed fact and law (Balev, at para. 38), the application of wrong law to a set of factsis an error of law (Canada (Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748 atpara. 39); and Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 32-33). [50] For the reasons that follow, it is my view that the Judge erred in law by misapprehending the legal principles as stated in Balevlaw and failing to apply those legal principles to her determination of V’s habitual residence. This misapprehension and consequentmisapplication of the law caused her to erroneously conclude that V was wrongfully retained in St. John’s. [51] There is no dispute that the Judge cited Balev.

However, she made several statements indicating her misapprehension of Balev,and decisions that show her misapplication of Balev. [52] For example, the Judge stated: [16] Removal of a child is considered “wrongful” even if consent is granted by the other parent holding custody rights for the child totravel temporarily away from their home jurisdiction. It becomes wrongful when the child is then retained beyond what was originallycontemplated (Thomson v. Thomson, (SCC), [1994] 3 S.C.R. 551). With respect, this statement of the law is incorrect.

As noted above, Balev laid to rest the notion that time-limited parental agreementsdetermine whether a retention is wrongful, saying that such legal constructs cannot determine a Convention application (Balev, at para.73).

Time-limited parental agreements are simply an aspect of parental intention, which itself is only one factor in the determination of achild’s habitual residence, and a factor Balev specifically directs is not to be overly relied upon. [53] The Judge stated that “the application judge determines the focal point of the child’s life — ‘the family and social environment inwhich its life has developed’ —immediately prior to the removal or retention …” (para. 74). This is correct, however, she went on to sayin response to the mother’s request that the Judge consider “the focus of the child’s life” as being in St.

John’s over the previous year,that: [79] Under the hybrid approach to habitual residence, the focus of the child’s life is a relevant consideration, but not to the exclusion ofother factors. Again with respect, this statement shows the Judge’s misapprehension of the analytical framework for determining habitual residence. Balev instructs that it is the focal point of the child’s life that must be determined (para. 43) — that the child is the focus of the analysisin determining the child’s habitual residence (para. 68).

The focus of the child’s life is not just a relevant consideration; it is the object ofthe inquiry. The circumstances of the case, including the child’s connections to each jurisdiction, the circumstances of the move to thepresent jurisdiction, and all other relevant facts including parental intention, are relevant considerations which inform a court’sdetermination of the focus of the child’s life for the purpose of determining the child’s habitual residence. [54] The Judge’s discussion of the circumstances in play in Knight v. Gottesman, 2019 ONSC 4341, is also telling.

The Judgelikened the Court’s reasoning in Knight to this case, saying that there was no intention on the part of either of V’s parents to establishNewfoundland and Labrador as their habitual residence (paras. 76-77). [55] The Judge also said: [88] The fact that the child spent an appreciable period of time in Newfoundland does not displace Massachusetts as the habitualresidence. As noted in Chan at para. 31,” An appreciable period of time and a settled intention will be necessary to enable him or her tobecome so.

During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet becomehabitually resident in country B”. (Emphasis added).

Again with respect, this statement of the law is incorrect: “[a]n appreciable period of time and a settled intention” (on the part of a child’s parents to relocate to a present jurisdiction) is not the test for determining whether the child’s habitual residence has changed. [ 56 ] The Judge went on to apply the above-noted incorrect law to the evidence, and concluded: “Throughout V’s stay in Newfoundland, her parents maintained their connections and the child’s to Boston and exhibited a settled intention to remain habitual residents of Boston” (para. 89).

In other words, the Judge relied on the settled intention of the parents to return to Boston to find that V’s habitual residence was Boston. [ 57 ] The Judge’s use of the term “settled intention” was based on the term as found in Thomson , Korutowska-Wooff v. Wooff , 2004 ONCA 5548, and Chan v. Chow , 2001 BCCA 276 (Decision, at paras. 70-71, 78, 88-89) on which the Judge relied. In those and other cases, the term was used to describe a finding of where the parents had once intended to live together with their children. These cases are pre- Balev cases.

The predominance of parental intention as it is described therein has been expressly overruled by Balev . [ 58 ] As discussed in Balev , Chief Justice MacLachlin identified the problem with Courts overrelying on parental intention (paras. 45, 69). By way of further explanation, I add that permitting the determination of a child’s habitual residence to rest on parental intention as it has been described and applied in pre- Balev jurisprudence fails to recognize that parents’ intentions and lives change.

Parents, together or separately, are people who often change their minds about where they want to live and whether they want to stay together as a unit. Failing to appreciate this reality, and binding both parents to a joint intention formed at a previous time and in different circumstances, binds both parents to the preference of one parent over the other, and effectively treats the child as a possession of the parent whose intention has not changed. That approach is folly, in that it diverts the inquiry away from determining the child’s own connections to the jurisdictions in question, as Balev directs.

The inquiry into habitual residence must concentrate on the focal point of the child’s life immediately before the time of the alleged wrongful removal or retention, and not on past parental intentions that do not reflect the current circumstances of either the parents or the child. [ 59 ] The Judge, at para. 11, quoted the following from para. 24 of Balev : … The return order [to the jurisdiction of habitual residence] is not a custody determination:

Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the "wrongful" parent of any advantage that might otherwise be gained by the abduction. … and added that a Convention application does not determine custody or consider the child’s best interests. Rather, its purpose is to return the child to their habitual residence where those best interests will be considered (Decision, at para. 13). [ 60 ] This statement of the law, while correct, requires explanation.

For example, while a court deciding a Convention application does not consider the “best interests of a child” for the purposes of determining custody and access, there is nothing in the Convention that precludes a court from considering a child’s general interests when focusing on the focal point of the child’s life. Such general interests are at the heart of the test for habitual residence. Balev instructs that the determination of a child’s habitual residence must consider how connected the child is to the jurisdictions involved.

This implicitly involves the child’s general interests, insofar as the child’s connections to their environment is concerned, as opposed to the best interests of the child for the purposes of parenting. In this regard, see Balev , at para. 89 , and Bačić v. Ivakić , 2017 SKCA 23 , at para. 25 . The Links [ 61 ] The Judge correctly stated that in determining habitual residence the Court considers the child’s links to the competing jurisdictions as well as the reasons for the move. At paragraph 68 of her decision, she listed what she considered to be the relevant links.

Upon review, it is clear that parental intention dominated her list. V’s Move to St. John’s [ 62 ] The Judge’s description of the circumstances of V’s move to St. John’s understandably consisted entirely of factors that relate to the circumstances of her parents. These circumstances are relevant, as they explain how V came to be living in St. John’s, but they are not determinative of her habitual residence as of the date of alleged wrongful retention.

V’s Links to Boston [ 63 ] Of the 25 links referred to by the Judge as V’s connections to Boston, over half do not relate to V but to her parents’ circumstances and intentions. Further, it is not clear how certain of those links are relevant to parental intention. For example, the judge noted that the mother voted in the 2020 American election and that she filed income taxes in the United States that year. Of the links that refer directly to V’s circumstances, they are connections V had to Boston prior to going to St. John’s, and are either tenuous or no longer current.

For example, the online piano lessons V took through the Brookline School of Music is a tenuous connection to Boston, given that the lessons were delivered remotely by a teacher in California. Also, the Judge stated that “V has friends in Boston” with whom “she maintained FaceTime contact” (para. 68). It appears that V had one FaceTime contact with her single school friend from Boston shortly after she moved to St. John’s, and by the time of trial, the friend had left the school she and V had attended together.

The only current social link the Judge listed that V had to Boston was that V was close to her aunt L who lived in Boston. While the evidence was that V’s aunt L no longer lived in close proximity to where V had lived in Boston and that she had less free time to spend with V given her new demanding job, there was no evidence that the significance of this relationship had diminished since V had been living in St. John’s. V’s Links to St. John’s

[ 64 ] By contrast, all the links V had to St. John’s were current, and indicative of V’s actual circumstances immediately before the alleged wrongful retention. The single link that was not, was the fact that the family did not purchase or rent accommodations in St. John’s, which in any event speaks to parental intention. Importantly, although the Judge listed links V had to St. John’s, the Judge did not discuss the significance of them to V, in particular the significance of school to V, or if they had weight in her consideration of whether V’s habitual residence had changed.

Neither did the Judge consider V’s age, and that she may have had her own connections to St. John’s aside from those of her father and mother. [ 65 ] The Judge’s analysis of the links also illustrates her emphasis on V’s historical connections to Boston. The Judge stated in her decision that V had spent all of her life in Boston (para. 40). Given that V had spent a full year in St. John’s before the date of the alleged wrongful retention, this is not quite so. Even if the Judge meant that V had spent most of her life in Boston, her emphasis on the links that

(1) V was born in Boston and had lived there her entire life prior to the trip to Newfoundland on July 25, 2020,

(2) V had attended Daycare, Pre-Kindergarten and Kindergarten in the Boston Public School System, and

(3) V had been enrolled in extra- curricular activities in Boston, suggests that the Judge considered the historical time that V spent in Boston was more significant than the time she spent in St. John’s immediately before the date of the alleged wrongful retention. [ 66 ] Historical links to a former jurisdiction as well as “[t]he length of time the children spent in each jurisdiction” (Decision, at para. 20), are relevant, but they must be considered in context.

The purpose of considering duration is not to compare the lengths of time spent by the child in each jurisdiction with a view to giving more weight to the jurisdiction in which the child spent more time. A child’s historical connections are relevant to the determination, but they are not to be weighed the same as the child’s connections to the present jurisdiction existing immediately before the time of the alleged wrongful removal or retention.

Historical connections generally do not reflect the connections the child has established with the present jurisdiction ( Ludwig, (ONSC) , at para. 93; and Convention , at arts. 3, 4). [ 67 ] It is instructive to refer again to Lord Moylan’s decision in M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) , wherein he cautioned against placing a disproportionate focus on the extent of a child’s roots in or historical connections with a previous jurisdiction, rather than focusing on the child’s current situation immediately before the alleged date of wrongful abduction or retention as the Convention directs (para. 62).

In this regard, it is well recognized in the jurisprudence that a child’s habitual residence can change to a present jurisdiction within a short period of time despite the child having spent a much longer period of time in a former jurisdiction, and in some cases, even in a single day ( see Salvatore v. Medeiros , 2021 ONSC 1488 , at para. 28 ; and Gavriel v. Tal-Gavriel , 2015 ONSC 4181 , at paras. 51 , 55).

If the words “immediately before” are to have any meaning, currency with the date of the alleged wrongful removal or retention is a controlling factor (see Ludwig, (ONSC) , at para. 93; Beairsto , at para. 124 ; and J.M. , at paras. 16, 17, 40 ). Conclusion [ 68 ] The Judge incorrectly instructed herself that the circumstances of V’s parents and their previous intention to live together in Boston, along with V’s historical connection to Boston, were the controlling factors in determining V’s habitual residence. The Judge’s focus on parental intention and her failure to consider V’s connections to St.

John’s immediately before July 30, 2021, caused her to focus almost entirely on the prior intentions of V’s parents and not on V’s life or current connections. The Judge’s only comment respecting the focus of V’s life was to say that it was a relevant factor, but not to the exclusion of other factors. The Judge’s approach led her to erroneously conclude that despite the appreciable period of time V spent in Newfoundland, her parents’ (former) settled intention to remain habitual residents of Boston made V’s habitual residence Boston.

In short, the Judge failed to apply the principles set out in Balev , and instead applied wrong and outdated law in her determination of V’s habitual residence. Accordingly, her conclusion that V was wrongfully retained in St. John’s must be set aside. The Mother’s

Article 13(

b) Claim [ 69 ]

Article 13(

b) of the Convention provides an exception to the issuance of a return order when return would expose the child to a grave risk of physical or psychological harm or place the child in an intolerable situation. In this case, the mother argued that the emotional abuse of her by V’s father would subject V to a risk of grave harm and place her in an intolerable situation by being returned to Boston without her. [ 70 ] The Judge decided that the mother’s allegations respecting her husband’s emotional abuse did not establish that V would be subject to a grave risk of harm or placed in an intolerable situation by being returned to Boston. Accordingly, the Judge dismissed the mother’s claim to the

article 13(

b) exception. I agree with the Judge’s decision. While it is not necessary to address the mother’s arguments respecting her

article 13(

b) claim and other matters, some require comment. A Return Jurisdiction’s Ability to Protect a Child [ 71 ] In the course of her analysis respecting the mother’s

article 13(

b) claim, the Judge noted that there was no evidence that police or child protective services had ever been called to assist the family (para. 110), and that the mother had failed to lead any evidence that the local child protective authorities in Boston would not be able to intervene to protect V from abuse (para. 144). These statements suggest that a party resisting a Convention return order on the basis of

article 13(

b) must show that the return jurisdiction is either unwilling or unable to protect a potentially returning child from harm. This is not so. [ 72 ] The notion seems to have grown out of a mis

interpretation of D.R. v. A.A.K. , 2006 ABQB 286 , at paras. 13 , 249-253, which the Judge cited in this case. In D.R. , there was evidence, which the Court accepted, that the proposed return jurisdiction had in fact failed to act to protect the subject child who was being sexually abused while the child lived there. The reasoning in D.R. does not translate into a positive responsibility on a respondent to adduce evidence that a contracting state would fail to protect a returned child. If such evidence happens to be available, like it was in D.R . , then it can be adduced to strengthen an

article 13(

b) claim. However, there is no requirement to call such evidence in order to establish an

article 13(

b) claim. [ 73 ] Whether a return jurisdiction is able to protect a child from abuse was considered by the Saskatchewan Court of Appeal in Ivakić and also by the Alberta Court of Appeal in C.B. v. B.M. , 2021 ABCA 266 . In Ivakić , the mother, who was resisting an order that her child be returned to Croatia, argued that Croatian courts do not take domestic violence seriously, and she claimed that this was shown by

a Croatian child protection tribunal which had permitted the child’s father unrestricted but limited access to the child. The appellateCourt did not accept the mother’s claim that the Croatian courts would not protect the child on the basis of the mother’s arguments. Neither did the Court accept the mother’s

article 13(

b) claim. However, the Court dismissed the father’s Convention application becausethe child had become a permanent resident of Canada and had become “settled into” Saskatchewan within the meaning of

article 12 ofthe Convention. [74] In C.B., the mother, who was resisting the father’s Convention application, argued that her children could be in danger if returnedto France, saying that the French legal system had shown itself incapable of protecting her children’s welfare. The appellate Court didnot accept that this was so on the basis of the evidence and arguments the mother submitted, and ultimately returned the children toFrance because they had been wrongfully removed from France and they had not settled into Canada within the meaning of

article 12. [75] In D.R., Ivakić and C.B., the respective Courts were dealing with specific allegations and evidence respecting the ability orwillingness of local authorities in the respective return jurisdictions to protect the subject children. These cases do not stand for theproposition that there is a positive or inferential obligation on a party resisting a return order to adduce evidence that the returnjurisdiction cannot or will not protect a child.

Aside from the obvious difficulties of proving such a negative in the absence of specificevidence, it is uncontroversial that the state is not the arbiter of all cases of domestic abuse, especially those involving emotional orpsychological abuse in which police and child protection services are not normally involved. [76] In any event, contracting states to the Convention can be presumed to have police and child protection services available to thoseresiding within their jurisdictions, unless there is evidence to the contrary, as there was in D.R. (see also Finizio v. Scoppio-Finizio, (ON CA), [1999] O.J.

No. 3579, 179 D.L.R. (4th) 15, at para. 34 (Ont. C.A.)). Despite this presumption, it remains theduty of the courts to assess whether there is grave risk of harm to a child being returned or if the child will be placed into an intolerablesituation. [77] In

summary, there is no duty on a party relying on an

article 13(

b) claim to prove that the return jurisdiction is not able to protecta child. To the extent that the Judge placed an onus on V’s mother to prove that the Boston authorities would not protect V, she was inerror. The Evidentiary Rulings [78] The Judge’s handling of the mother’s

article 13(

b) argument also raises issues respecting evidentiary rulings on the admissibilityof the mother’s medical chart from the Massachusetts General Hospital and Dr. Philpott’s evidence. The Massachusetts General Hospital Records [79] The Judge refused to admit the mother’s records from the Massachusetts General Hospital, which were proffered to support themother’s evidence relating to her husband’s attitude towards her illness which in turn informed her

article 13(

b) claim based on spousalabuse. It appears from the transcript that the father contested the admissibility of the hospital records on the basis that they were notauthenticated by a hospital official and that they contained expert opinion. The mother argued that her hospital records were businessrecords admissible for the truth of their contents pursuant to the law as stated in Ares v.

Venner, (SCC), [1970] S.C.R.608. [80] The Judge did not admit them into evidence on the bases that (1) they contained opinions from experts who were not availablefor cross-examination, and (2) there was no benefit to admitting them because the mother could testify to the contents. The Judge alsoreasoned that the hospital records were not relevant because they could not assist in evaluating the risk of harm to V should she bereturned to Boston (Transcript, Oct. 6, at pages 5-6). [81] There is no dispute that the law requires some evidence capable of authenticating that the records are what they are professed tobe.

But authentication does not mean that every word stated in a tendered record is accurate. The mother could have provided evidencecapable of authenticating her hospital records for the purpose of their admissibility, similar to how a records custodian could. Themother also could have authenticated the records by testifying that she was tendering them as received by her in accordance with thereply letter doctrine, as explained in R. v.

C.B., 2019 ONCA 380, at para. 69. [82] As to whether the medical records contained expert opinion, the record does not show that the Judge reviewed them to ascertainwhether in fact they included such expert opinion. If expert opinion were contained therein, it could easily have been excised before therecords were admitted, or the records could have been admitted and the expert opinion excised or ignored if and when it became anissue.

Trial judges are expected to be able to restrict their consideration of evidence to relevant and admissible evidence when decidingissues. [83] Further, there was no suggestion that the records had been tampered with or that they were fraudulent, and if such an issue arose,it could be dealt with in due course. The actual use the Judge could make of the contents of the records could be determined asappropriate in accordance with the principles set out in Ares respecting the business documents exception to the hearsay rule.

Additionally, and importantly, rule F1.05 of the Supreme Court Family Rules provides for relief from strict compliance with the rules ofevidence in family proceedings. [84] As for relevance, the fact that some evidence respecting an issue has already been adduced does not make other like evidenceirrelevant. Corroboration is a valuable evidentiary tool, especially when credibility is involved, as it was on the issue of spousal abuse. The records could have provided corroboration of the mother’s abuse claim or refuted some of the evidence the father had givenrespecting his view of his wife’s medical condition.

Further, it is well established that abuse of a child’s custodial parent can establish arisk of harm to the child (see Zafar v. Saiyid, 2018 ONCA 352, at paras. 16-18). See also Monasky, at Syllabus 1(b).

[85] The Judge’s refusal to admit the hospital records might have made sense if the mother’s abuse allegation had not been contested. However, the abuse allegation was contested by the father, making the credibility of both the mother and father respecting whether or towhat degree the abuse occurred relevant. Given this situation, the hospital records documenting her condition and treatment made in thenormal course were relevant for the purpose of corroborating the mother’s evidence of her illness and alleged abuse.

Moreover, failingto admit them is hard to reconcile with the Judge’s decision to admit, consider, and adjudicate on 1239 pages of text messages(communicated over a period of two years) tendered by the father to refute his wife’s allegation of abuse. [86] The admissibility of evidence is a question of law. For the above reasons, it is my view that the Judge erred in refusing to admitthe mother’s hospital records. That said, whether the admission of the records would have made a material difference to the Judge’srejection of the mother’s

article 13(

b) claim is impossible to say. In any event, it does not matter given my conclusion on V’s habitualresidence. Dr. Philpott’s Evidence [87] The mother also argued that the Judge inappropriately constrained the evidence of Dr. Philpott. The father objected to Dr.Philpott testifying on the basis that he was an expert who was providing expert opinion evidence under the pretense of being a laywitness. [88] Dr. Philpott was a friend of the mother and her family. He was also a retired clinical psychologist. His evidence comprised hisfactual observations of V and her parents respecting their interactions with each other.

After much argument respecting the father’sobjection, the Judge permitted Dr. Philpott to testify …as a fact witness and [if he] refrains from expressing opinions unless they are clearly those within the sphere of day-to-day experienceknowledge base, okay? (Transcript, Oct. 4, at page 34). I essentially agree with the Judge’s ruling. It is supported by the long-established law set out in Graat v. The Queen, (SCC), [1982] 2 S.C.R. 819.

However, something more must be said. [89] Expert evidence is opinion evidence, often scientific, which is drawn by an expert from facts and observations which non-expertslike judges do not have the necessary skill, knowledge and education to appreciate. Expert opinion, if accepted, provides a ready-madeinference for a court. Courts must be alive to the differences between fact and opinion evidence, as the Judge was, and take care toseparate factual evidence from expert opinion.

However, there is no evidentiary principle which prevents a person with specialknowledge and talent, and who could be qualified as an expert in the instant case or another case, from testifying as a fact witness. Further, witnesses are not all of equal intelligence and ability, and some, by virtue of their experience and training, may have more acutepowers of observation and may notice things that others do not. I note this because I would not want the impression to be left that theJudge’s ruling restricting Dr.

Philpott’s testimony to “the sphere of day-to-day experience knowledge base” means that a witness mustadjust his or her evidence to that of a person with lesser or different knowledge and experience. The law does not require fact witnessesto tailor their evidence to that of such a person, whoever that may be. In this regard, see R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R.250, at paras. 53-66, for a discussion of the issue in the context of the experience and training of police officers.

Misapprehension of Evidence The Credibility Comments [90] Much ado was made at trial about exactly when V and her mother would be returning to Boston. The father testified repeatedlythat he and the mother had agreed that V and her mother had intended to return to Boston on August 16, 2020. The mother denied thatshe had agreed to return to Boston with V on August 16, 2020.

However, she did not deny that that she had agreed to return to Boston inlate August 2020, after the father’s mid-August golf tournament (see Transcript, Oct. 7, at pages 29-36, and Oct. 8, at pages 80-86). [91] To refute the father’s adamant and repeated evidence (numerous times) that a specific date for their return had been agreed upon,the mother tendered a recording of a telephone conversation she had with the father to show that while she had agreed to return to Bostonafter the golf tournament, there was no agreement respecting August 16 or another specific date. [92] The Judge accepted the father’s evidence that there was an agreed return date of August 16, 2021, and stated that the recordingconfirmed the father’s evidence and contradicted that of the mother (Decision, at para. 65). [93] The recording was provided to the appeal panel.

The recording confirms the mother’s evidence that she agreed to return after thefather’s golf tournament in mid-August, and there was no mention of her returning to Boston with V on August 16. Yet the Judge statedthat the recording contradicted the mother’s evidence. The adverse credibility finding against the mother resulted from the Judge’smisapprehension of the evidence. [94] Another adverse comment in respect of the mother’s credibility may also have resulted from a misapprehension of evidence.

Inher affidavit of response to the Convention application, the mother stated, “I am concerned that he encourages V to sleep with him whilehe is sleeping nude.” In her testimony, the mother stated that she raised the issue in her response because she was concerned about theappropriateness of some of the father’s parenting of V. The father was upset by this statement in the mother’s response, although heacknowledged that his sleeping nude had been a source of ongoing conflict between him and his wife.

In fact it was referenced in thetext messages the father tendered. [95] The mother made clear in her testimony on direct that she was not alleging any sexual impropriety, and she was not cross-examined on this point. On appeal, her counsel stated the obvious, saying that if the mother thought that there had been anythinguntoward between her husband and child, she would not be proposing V’s liberal access to her father as part of the parentingarrangements. Nevertheless, the Judge saw the mother’s comment in her response as a “weak attempt” to establish an

article 13(

b) claim

(para. 125). While credibility is a trial judge’s call, the Judge’s adverse comment shows that she may have misapprehended the mother’s evidence. Timeliness [ 96 ] The hearing of this matter was set immediately upon the father’s Convention application being filed, and the trial began within a month. It is clear from the Transcript that the Judge was concerned that the matter had to move along quickly. This is understandable, given that the Convention , Balev , and the Supreme Court Family Rules direct expeditiousness in handling Convention applications.

However, these directions should not operate in a way that prejudices or pressures a party, especially when normal requirements and practice respecting notice for tendering expert reports cannot be realistically met. A Convention application, by its nature, could involve expert evidence as well as evidence coming from outside of the trial court’s jurisdiction, as this case did.

Apprehension of Bias [ 97 ] The mother also argues that the cumulative effect of the Judge’s interventions and rulings and general trial conduct gives rise to an apprehension of bias. [ 98 ] The bar to establish apprehension of bias on the part of a judge is high. The issue was considered by this Court recently in A.H. v. R.B . , 2022 NLCA 9 .

In A.H. , Chief Justice Fry set out the principles governing apprehension of bias and stated the question to be determined as: [48] …what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude. My colleague Goodridge J.A. has addressed this issue at paragraphs 212-221 of his dissenting opinion. While I differ from him respecting whether the Judge made reviewable errors in her handling of this matter — I say yes, he says no — I agree with him that apprehension of bias has not been made out in this case.

I would also make another comment. [ 99 ] I agree with my colleague that the Judge’s interventions in the mother’s counsel’s cross-examination of the father were because the questioning related to parenting, which was not, in the sense of custody and access, the issue before the Court. It was, however, relevant to whether the mother was the primary parent, which was an issue before the Court. Further, the father testified at great length respecting his view of the marriage and his parenting of V, and submitted 1239 pages of text messages on these issues for the Court’s consideration.

Accordingly, it is understandable why the mother’s counsel would raise the issue in her factum. SHOULD THIS COURT DECIDE THE FATHER’S CONVENTION APPLICATION? [ 100 ] Given that the Judge’s decision respecting V’s habitual residence must be set aside, it falls to this Court to decide whether a new trial should be ordered or whether this Court can properly determine V’s habitual residence on the basis of the record and relevant law and thereby decide the father’s Convention application. [ 101 ] In Madsen Estate v.

Saylor , 2007 SCC 18 , [2007] 1 S.C.R. 838 , the Supreme Court of Canada considered the circumstances in which an appellate court can finally decide a civil case after finding error. In Madsen Estate , the Court ruled that it was both practical and fair to decide the case on the basis of the evidentiary record rather than sending the case back to trial. This Court came to the same conclusion in John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St.

John’s , 2020 NLCA 27 , on the basis that it was a matter of applying the correct law to an uncontroversial evidentiary record, which this Court was well positioned to do. As well, the advanced age of both the litigation and the claimants made it practical to do so ( John Doe , at paras. 119-124). See also Matchim v.

BGI Atlantic Inc. et al. , 2010 NLCA 9 , 294 Nfld. & P.E.I.R. 46 , at para. 99 , wherein this Court made another similar decision. [ 102 ] I note that the Nova Scotia Court of Appeal took this approach in Beairsto , after setting aside the trial judge’s reasoning which was based on dated, pre- Balev law. The appellate Court reasoned that sending the matter back for a new trial would visit continuing uncertainty on the parties, and the record was sufficient for the appellate Court to make a fair determination of the child’s habitual residence.

The Court also reasoned that appellate courts in Canada and other contracting states have demonstrated little hesitation in finally determining questions surrounding habitual residence ( Beairsto , at paras. 85-92 ). [ 103 ] Likewise in this case, the evidentiary record respecting the question of V’s habitual residence is clear and not controversial. The necessary information respecting the circumstances of V’s move to St. John’s, and the focus of her life immediately before July 30, 2021, including her connections to both St.

John’s and Boston, along with the evolving intentions of her parents and other relevant circumstances, are before the Court as a matter of record. As a practical matter, timing is an important consideration, so that the matters of custody and access respecting V and her parents can be resolved sooner rather than later. [ 104 ] It is my view that it is both practical and just that this Court determine whether V was wrongfully retained in St. John’s by applying the correct law to the evidentiary record. WAS V WRONGFULLY RETAINED IN ST.

JOHN’S AS OF JULY 30, 2021? [ 105 ] The Judge determined that the date of V’s wrongful retention was July 30, 2021, which was the date the mother told the father she would not be returning to Boston. Given the father’s evidence, it could be said that August 16, 2021 was the date of the alleged wrongful retention, but nothing turns on this difference of two weeks. The Judge found that the father was exercising custody rights respecting V at the time of the alleged wrongful retention, and that if V were being wrongfully retained in St. John’s, his custody rights would be breached. I agree with this finding.

Accordingly, the question for the Court is where was V’s habitual residence immediately before July 30, 2021. The Parents’ Circumstances

[ 106 ] I begin with consideration of the parents’ circumstances in July 30, 2021. V’s father was under the impression that V and her mother would be returning to Boston in late August 2021. The mother did not dispute that this was the ostensible plan, or that she had agreed to it as recently as July 29, 2021 in the recorded telephone call. However, despite not being forthcoming to the father on July 29, 2021, the mother had changed her mind after the father returned to Boston at the end of June.

She advised her husband on July 30, 2021, that she would not be returning to Boston to live and that she had filed proceedings in Newfoundland and Labrador respecting divorce and the custody and access of V. Despite being aware of problems within the marriage and having previously threatened divorce himself, the father was understandably shocked and upset by the mother’s news that she was ending the marriage. [ 107 ] The mother’s news that she was ending the marriage has the hallmark of a unilateral decision.

Even though the unilateral decision of a parent does not determine the habitual residence of a child, the circumstances of the mother’s decision to leave the marriage must be seen in context. The uncontroverted evidence established that the mother had been counselled for domestic abuse since 2017, and that she was on domestic violence leave from work at the time of the trial (Transcript, Oct. 8, at page 92). There was also evidence from other witnesses respecting her husband’s emotional abuse of her.

Given that she had coped with her troubled marriage for several years, her decision to leave the marriage appears abrupt. [ 108 ] The Judge acknowledged that the parties’ marriage was “troubled, if not dysfunctional” (para. 103). The Judge accepted that they had a difficult relationship, and stated “the evidence demonstrated that J.F. clearly loves his daughter and was devastated by the abrupt end of his marriage. J.F. acknowledged that there were difficulties in their marriage but stated he thought his wife loved him” (para. 142).

Regardless, the state of the parents’ marriage break-up does not make V’s habitual residence Boston, or support an order to return V to Boston. Neither do these circumstances usurp the Court’s responsibility to determine V’s habitual residence by applying the correct law to the evidence. It bears repeating that there is no “rule” regarding unilateral decisions, as Balev instructs, and post Balev jurisprudence supports. Par

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