Carlos Alejandro Valenzuela-Sone Plaintiff - v. -, 2023 ABKB 495

Court of King’s Bench of Alberta Citation : Valenzuela-Sone v Barnachea, 2023 ABKB 495 Date: 20230830 Docket: 4803 200432 Registry: Edmonton Between: Carlos Alejandro Valenzuela-Sone Plaintiff - and - Tania Fuentealba Barnachea Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice M. J. Lema _______________________________________________________ I.

Introduction [ 1 ] Must a mother who moved in June 2023 from Edmonton to Los Angeles, Chile with her twin 16-year-old daughters without the father’s consent or knowledge, an authorizing order or a dispense-with-notice order return the children to Edmonton pending the hearing of a relocation application? [ 2 ] The answer is yes, as explained below. II. Background

[ 3 ] The parties married in 1999, had their first child in 2000, had the twins in 2007, and separated under the same roof in 2014 and physically in January 2023. [ 4 ] The father says he learned in May 2023 that the mother intended to move to Chile with the twins, without first notifying him, and to start divorce proceedings there. [ 5 ] Per him, in response, he filed a statement of claim for divorce and division of family property, also “seeking that the [twins] stay in Canada.” He filed that claim on May 17, 2023 and served the mother on May 24, 2023. [ 6 ] Per his counsel’s service cover letter to the mother dated May 19, 2023: … [the father] advises that you have threatened to take the [twins] to Chile on multiple occasions, and it has come to his attention that you intend to fly there with them in June 2023, with the intent of bypassing airport controls if possible and then never return, despite having a flight ticket.

Due to these concerns, please consider this letter formal notice that [the father] does not authorize any travel to Chile, or outside Canada for the children at this time. Should you disregard this letter and somehow leave Canada with the Children, please be advised that we will immediately bring an application under the Hague Abduction Convention to return the children to Canada. [The father] does not believe that it is in the children’s best interest to be permanently relocated to Chile.

However, he is prepared to discuss the other issues and to come to a resolution of this matter if possible. [excerpts from letter] [ 7 ] The mother responded, in part, with text messages to the father advising him to “prepare [him]self”, “you think that because of what you do here, I won’t be able to do it in Chile”, “ … the divorce [in Canada] won’t help you in Chile”, “you will be served from Chile”, “ … I can still sue you in Chile …” [dates unclear]. [ 8 ] Per the father: On or about June [22], 2023, I had my phone service stop working.

It appeared that other services related to the matrimonial home [where the mother and twins had been living] stopped working as well.

Fearing that this might be an indicator that [the mother] might be leaving Canada, I instructed my counsel to write a letter to [her] counsel, requesting confirmation that the [twins] are still in Canada. … I am advised by my counsel, and believe it to be true, that he has not received a response to this letter [from the father’s August 3, 2023 affidavit] [ 9 ] Here are excerpts from that letter (served by email on the mother’s counsel on June 22, 2023): … [the father] has noticed that telephones services, along with utilities related to the matrimonial home, seem to have been cut off without notice.

Our client is concerned that [the mother] intends to fly to Chile on [June] 29 th or earlier regardless of our letter to her at the time of service [see above]. As a reminder, [the mother] is explicitly not authorized by [the father] to remove the [twins] from Canada, for any purpose.

Kindly confirm that your client will not be attempting to remove the [twins] from the country at this time. … [part of Exhibit E to the father’s August 3, 2023 affidavit] [ 10 ] Per the father (same affidavit): During the weekend of June 30 2023, I attended the matrimonial home on Friday and Sunday to check if [the mother] and the [twins] were there. There was nobody at the residence. On July 16 [2023], I received a phone call from Gaston, [the mother’s] father, who told me that he had received a call from [the mother], who was in Chile ….

I went to the family home again, and the residence had been cleaned out. … It is now confirmed that [the mother] had taken the [twins] to Chile surreptitiously and without my consent. [ 11 ] Per the mother’s August 9, 2023 affidavit (in part): During our marriage, the [father], on multiple occasions, has told me that he did not like living in Canada and that he would rather move back to Chile. We also had multiple discussions of relocating back to Chile, putting the kids in school in Chile, and finally retiring there. On June 23, 2023, I relocated to Chile with the twins girls.

I request the Court to dismiss the [father’s] application for an Order for the immediate return of the children to Edmonton … for the following reasons: A. I don’t see any merit in spending a fortune on legal fees especially when the twin girls are of age [16] and they have made their decision of not seeing their father and relocating to Chile with me. … ; B. … The [father] has no plan of care, he simply wants me to come back to Canada ….; C. Instead of focusing our energy on the relocating issue, we should be diverting our focus and attention in figuring out the division of property and support issues.

If the issue of relocation were to be litigated, I will be requesting the Court to appoint a Counsel for the twin girls and set the matter for a Vice Voce Special Chambers Hearing to obtain an Order for relocation. [parts of paras 8 and 9; omitting evidence bearing on various “merits of the move” factors] [ 12 ] In early August, the father sought and obtained leave to bypass Family Docket Court and bring a direct return-children application in Urgent Matters chambers. In response to the bypass request, the mother’s counsel, through a student-at-law assisting in

his absence, advised (via August 3, 2023 email): [The mother] had planned to travel to Chile along with the [twins] for their summer vacation. The tickets for Chile were booked even before the divorce action was initiated …. Additionally, the children are 16 years old and are also enrolled in the School for the next session in Edmonton. [The mother] has no intentions of relocating to Chile along with the children. Further, we agree on having Edmonton as the jurisdiction to decide this matter.

Upon [the mother’s] return from Chile, a 4-way meeting can be arranged ….to deal with the Family Property and Support issues. …. [part of ex B to father’s August 11, 2023 affidavit] [ 13 ] On August 9, 2023, the mother’s counsel sent the following email (in part) to the father’s counsel: [The mother] has relocated to Chile and has no intentions of returning. … In my humble opinion, your client’s [return-children] application is not going to be successful, let’s not spin the wheels and [instead] focus on the bigger picture. • Kids are Chilean citizens; • They are of age; • They have opinions and they have expressed them; • Even if the Court were to grant an Order, they are not coming back; [and] • [The father] has no plan of care (we both know that).

Let’s exchange disclosure, list the house for sale, and figure out the property division and appropriate support. I would rather not waste time drafting the Affidavit . [part of ex B to father’s August 11, 2023 affidavit] [emphasis added] [ 14 ] No parenting order or formal parenting agreement emerged after the parties separated (in either fashion) or exists currently. [ 15 ] The father’s application came before me in Urgent Matters chambers on Monday, August 14, 2023. I reserved my decision. III. Relocation – legal principles and application of them here A.

Divorce Act relocation provisions [ 16 ] The Divorce Act provides a detailed framework for relocations, including the following notice provisions: 16.9

(1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time , decision-making responsibility or contact under a contact order in respect of that child of their intention.

(2) The notice must set out (

a) the expected date of the relocation; (

b) the address of the new place of residence and contact information of the person or child, as the case may be; (

c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and (

d) any other information prescribed by the regulations.

(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence.

(4) An application referred to in subsection (3) may be made without notice to any other party. 16.91

(1) A person who has given notice under

section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if (

a) the relocation is authorized by a court; or (

b) the following conditions are satisfied: (

i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in (

A) a form prescribed by the regulations, or

(

B) an application made under subsection 16.1(1) or paragraph 17(1) (b), and (ii) there is no order prohibiting the relocation.

(2) The form must set out (

a) a statement that the person objects to the proposed relocation; (

b) the reasons for the objection; (

c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1) ; and (

d) any other information prescribed by the regulations. 16.92

(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in

section 16 , (

a) the reasons for the relocation; (

b) the impact of the relocation on the child; (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (

d) whether the person who intends to relocate the child complied with any applicable notice requirement under

section 16.9 , provincial family law legislation, an order, arbitral award, or agreement; (

e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; (

f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision- making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and (

g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. [emphasis added] B. Purpose of notice provisions [ 17 ] The Alberta Court of Appeal examined the purposes of the notice provisions in in YZVM v DTT , 2022 ABCA 87 : The rationale for the amendments requiring notice of a relocation was to help protect children’s relationships with specified individuals.

Notice allows the parties the opportunity to discuss the proposed relocation and attempt to resolve issues: “The Divorce Act Changes Explained” (3 June 2020), online: Government of Canada https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace- clde/index.html . Thus, the amendments ensure the status quo pending a proper hearing, if necessary, which is in the best interests of the children involved.

The amendments also deter “self-help”. [paras 20 and 21] [ 18 ] In BMWG v JWG , 2022 BCSC 1346 , Kirchner J. found similarly: The requirement of notice under s.16.9 of the Divorce Act is a crucial part of the scheme for relocations under that Act. It provides the other parent with notice of a potential relocation and time to respond to that proposal. It also prevents the potentially relocating parent from changing the status quo of the child’s residency before a court has the opportunity to consider whether relocation is in the child’s best interests. As Justice Francis observed in D.T.S. v.

S.P.M., 2022 BCSC 547 at paras. 55-56 [ D.T.S. ], establishing a new status quo increases the relocating parent’s chances of demonstrating the relocation is in the child’s best interests. [para 38] [ 19 ] In Lemay v Lemay , 2023 ABKB 303 , Marion J. drew on both cases in gauging statutory purpose: Compliance with the statutory notice requirements should be the norm because they are a crucial part of the relocation regime designed to ensure the status quo pending a proper hearing, and to give parties an opportunity to discuss and reach resolution before the move or before resort to the court is required: YZVM v D TT , 2022 ABCA 87 at para 20 ; BMWG v JWG , 2022 BCSC 1346 at para 38 . [para 33] [ 20 ] The same and additional purposes were recognized by Professor Rollie Thompson in “Legislating About Relocating – Bill C- 78, N.S. and B.C.” (28 th Annual Institute of Family Law – County of Carleton Law Association – April 5 and 6, 2019 -- 2019 CanLIIDocs 3939 ): All the Canadian relocation statutes establish a regime of mandatory notice of relocation, no longer leaving the matter to the parties in agreements or to courts in individual orders.

What are the possible purposes of mandatory notice of relocation?

(

i) the usual reasons for any notice, to inform another party of an intended future action , here relocation and its likely date; (ii) to provide the new [proposed] address and contact information for the parent or child; (iii) to provide the parties an opportunity to discuss the move and to attempt to resolve any changes in those relationships; (iv) to recognise the significant impact of relocation upon the child’s relationships ; (

v) to begin the legal process , to determine whether relocation will or won’t be allowed. Purposes (i), (ii) and (iii) focus upon the “notice” aspects, while purposes (iv) and (

v) underpin the “mandatory” nature of notice in these statutes.

Whatever the differences over the substantive law of relocation, there is a remarkable consensus over process : that relocation of a child should generally not be unilateral, should be planned and orderly, and should only occur only after a reasonable period of time to work out new arrangements. [part of pp 23 and 24] [emphasis added] [footnote omitted] [ 21 ] I perceive another (or perhaps already described but implicit) purpose, namely, eliciting the would-be mover’s position on parenting or access for the non-mover (i.e. assuming a move is approved) and, in turn, allowing the non-mover to stake a position on such parenting or access.

That is, going beyond simply “move or no move” but, if the proposed move is allowed, what parenting or access the non-mover should have: see para 16.9(2)(c), which requires the would-be mover to set out “a proposal as to how parenting time ... could be exercised” and para 16.91(2)(c), which calls for the non-mover’s response to such a proposal. C. Express consequence of failure to notify [ 22 ] Paragraph 16.92(1)(

d) makes notice non-compliance a factor in scrutinizing a proposed relocation: In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in

section 16 , (

d) whether the person who intends to relocate the child complied with any applicable notice requirement under

section 16.9 , provincial family law legislation, an order, arbitral award, or agreement[.] [emphasis added] [ 23 ] However, that is distinct from examining whether, in advance of a relocation-merits hearing, the child or children should be returned to their starting place in a notice-breach scenario i.e. pending the outcome of the merits application. [ 24 ] This raises the other potential consequence(

s) of a notice breach. D. Other consequence(

s) of failure to notify [ 25 ] As reflected in the chronology above, the mother regards the notice provision as a very low, if not flat, speed bump. Again, per her counsel: “[she] has no intentions of returning ... your [return-child] application is not going to be successful, let’s not spin the wheels and [instead] focus on the bigger picture ... even if the Court were to grant a [return-child] order, they are not coming back ...

I would rather not waste time drafting the [response to return-child-application] affidavit.” [ 26 ] The mother wishes to skip the notice step (including determining the consequence, if any, of her notice breach) and move directly to the relocation merits. [ 27 ] Are the notice provisions so easily disregarded?

Is their breach only relevant on a merits application? [ 28 ] The answers are no and no. [ 29 ] If Parliament had intended such a limited role for them (only a factor bearing on whether to permit relocation), the notice provisions would have been structured differently e.g. with a notice requirement (with or without exceptions) and a direct link to the relocation test (with notice compliance as one relevant factor, among others).

That is, Parliament would have enacted a notice mechanism with ss. 16.9 and 16.92 alone. [ 30 ] But Parliament included s. 16.91, which attaches a more fundamental consequence to a notice-breach relocation i.e. making such a relocation unlawful.

Section 16.91 limits relocations to persons who give the required notice and then either obtain court authorization to relocate or receive no objection from the notified party (and no prior order bars relocation) or who receive notice- dispensation under ss. 16.9(3). Where none of those relocation gateways apply, relocation is not permitted . [ 31 ] In the present case, the mother did not obtain court authorization, provide advance notice, or obtain notice-dispensation. Accordingly, the Divorce Act barred her from relocating the children in these circumstances. [ 32 ] Exploring the possible consequence(

s) of her statute-breaching move here – including whether the child should be returned on an interim basis -- is upstream of and distinct from exploring whether relocation should be permitted. [ 33 ] The father applied for the immediate return of the children, plus associated relief. The mother has not cross-applied for permission to relocate or for after-the-fact dispensing of the notice requirement. [ 34 ] Does this Court have jurisdiction to make a return-children order here? E. Jurisdiction to make a return-children order

Section 6.2 Divorce Act not applicable [ 35 ] The Divorce Act expressly contemplates an application for a parenting order (obviously including an order directing parenting by the left-behind parent i.e. the return of the children) in a notice-breach circumstance, or at least some of them. Here is s. 6.2 of the Act:

(1) If a child of the marriage is removed from or retained in a province contrary to sections 16.9 to 16.96 or provincial law, a court in the province in which the child was habitually resident that would have had jurisdiction under sections 3 to 5 immediately before the removal or retention has jurisdiction to hear and determine an application for a parenting order, unless the court is satisfied (

a) that all persons who are entitled to object to the removal or retention have ultimately consented or acquiesced to the removal or retention; (

b) that there has been undue delay in contesting the removal or retention by those persons; or (

c) that a court in the province in which the child is present is better placed to hear and determine the application.

(2) If the court in the province in which the child was habitually resident immediately before the removal or retention is satisfied that any of paragraphs (1)(

a) to (

c) apply, (

a) the court shall transfer the application to the court in the province in which the child is present ; and (

b) the court may transfer any other application under this Act in respect of the parties to the court in the province in which the child is present .

(3) If after the child’s removal from or retention in a province, two proceedings are commenced on the same day as described in subsection 3(3) , 4(3) or 5(3) , this

section prevails over those subsections and the Federal Court shall determine which court has jurisdiction under this section. A reference in this

section to “court in the province in which the child was habitually resident” is to be read as “Federal Court”. [emphasis added] [ 36 ]

Section 6.2 clearly covers circumstances where a “habitually resident in Canada” child is wrongly relocated within Canada, given the from-one-province-to-another elements of the section. [ 37 ] Does s. 6.2 also apply to wrongful relocations of such a child to outside Canada? [ 38 ] The answer is not immediately clear. [ 39 ] The opening wording of ss. 6.2(1) (“removed from ... a province contrary to [s. 16.9]”) is not limited to relocations within Canada. Same for s. 16.9 itself, which applies to relocations anywhere. [ 40 ] Some courts have applied s. 6.2 to out-of-Canada relocations e.g.

YQ v JD , 2021 BCSC 943 , where Matthews J. found habitual residence in BC, no consent or acquiescence to the child being in China, and no undue delay in seeking the child’s return (paras 60-71). [ 41 ] See also BC v DE , 2023 BCCA 251 , where the applicant sought the return to BC of a child then in Taiwan. The no-return decision turned on the threshold finding that the child was not habitually resident in BC. Per the Court of Appeal: The court has jurisdiction under s. 74(2)(

a) of the [Family Law Act] and s. 6.2(1) of the [ Divorce Act ] if a child was habitually resident in British Columbia at the times relevant to each provision. ... [To the same effect, see paras 33, 36 and 45 of the chambers decision: BC v DE , 2022 BCSC 1597 (Taylor J.).] [ 42 ] In BL v JX , 2021 BCSC 2724 , Master Bilawich applied s. 6.2’s threshold inquiry to another to-China relocation, finding habitual residence in China and thus no relief available under it: paras 47, 56, 57, and 71. [ 43 ] I am not aware of an out-of-Canada-relocation case featuring habitual residence in Canada and one of more of the ss. 6.2(2) exceptions applying i.e. where the starting-place province was directed to transfer the parenting application to the ending-place jurisdiction. [ 44 ] I find that s. 6.2 is limited to in-Canada relocation, given the para 6.2(2)(

c) reference to “a court in the province in which the child is present” (i.e. not “ a province” i.e. an assumption that the ending place is within Canada), the same reference in ss. 6.2(2) (contemplating jurisdiction transfer to another province only), and the necessary in-Canada circumstances in para 6.2(3) (with subsections 3(3), 4(3), and 5(3) all contemplating starting-in-Canada proceedings). [ 45 ] This in-Canada focus seems to be confirmed by a Department of Justice Canada explanatory note accompanying the 2021 amendments (“The Divorce Act changes explained” – March 1, 2021): The amendment limits the jurisdiction of courts when a child has been wrongfully removed or retained.

In cases of wrongful removal or retention, specific conditions must be met for the court in the province where the child is located to hear an application for a parenting order. If the conditions are not met, the court in the province where the child habitually resided before the removal or retention must hear the application. [emphasis added] 2. If s. 6.2 applies, it provides jurisdiction here

[ 46 ] If s. 6.2 does apply to out-of-Canada relocations, it is beyond question that the children here were habitually resident in Canada to the point of relocation (being raised in Edmonton, full-time, from ages 3 or so): see Osaloni v Osaloni , 2023 ABCA 1116 (paras 10 and 11 ). [ 47 ] I also find that the father has not, since the relocation, consented or acquiesced to the relocation (just the opposite) or exhibited undue delay in bringing his return-child application (responding to the end-of-June-2023 relocation with a bypass-Family- Docket-Court request on August 4, a return-child application (green-lit at FDC) filed the same day, and the application heard on August 14). [ 48 ] To the extent para 6.2(2)(

c) implicitly refers to an out-of-Canada court as possibly being better placed to hear the return-child application, the mother did not seek such relief or even mention that possibility.

In any case, I am satisfied that this Court is better placed or at least equally well placed (i.e. compared to a Chilean Court) to explore and decide the father’s return-child application i.e. in light of the children’s deep ties to Edmonton (14 years of residence) to the point of relocation (only two months ago). [ 49 ] Accordingly, if s. 6.2 applies, I find that this Court has the jurisdiction to make a return-child order here. 3.

No express relocation-out-of-Canada jurisdiction provision in Divorce Act [ 50 ] I proceed on the basis that s. 6.2 does not apply here. [ 51 ] No Divorce Act provision expressly and specifically governs relocation of habitually-resident-in-Canada children out of Canada. (Section 6.3 covers habitually-resident-elsewhere children present in Canada.) [ 52 ] The (possible) statutory gap here is only partially covered by The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (a.k.a.

The Hague Convention), as many countries are not signatories, and the Convention does not all in apply circumstances i.e. even among signatories (as here, with children over 15). [ 53 ] If no other Divorce Act provision expressly addresses jurisdiction in out-of-Canada relocations, can jurisdiction be found in other (more general) Divorce Act provisions on jurisdiction? 4.

General jurisdiction to make parenting orders [ 54 ] The Court has jurisdiction over this divorce proceeding started by the father in Edmonton in May of this year, in light of the father’s longstanding habitual residence in Alberta (14 years), per ss. 3(1) Divorce Act . [ 55 ] As for jurisdiction over parenting issues, 16.1(1) states: A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by (

a) either or both spouses; or (

b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent. [ 56 ] This Court is a “court of competent jurisdiction”, as explained by Payne and Payne in Canadian Family Law (Ninth Ed. – Irwin Law – 2022): In determining whether a court is “a court of competent jurisdiction”, the definition of “court” in section 2(1) [of the Divorce Act ] applies, and the court must be presided over by a federally appointed judge. [from p 570] [See also Dorval v Dorval , 2006 SKCA 21 (paras 6 and 7] [ 57 ] Subsection 16.1(2) authorizes interim parenting orders:

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection. [ 58 ] I find ss. 16.1(1) and (2) sufficient to provide jurisdiction to grant an interim return-child order here,. [ 59 ] I also note ss. 16.1(7) and (9), reproduced here: The [parenting] order may authorize or prohibit relocation of the child [ss. 16.1(7)] The [parenting] order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal. [ss. 16.1(9)] [ 60 ] As I read these subsections, they too can anchor a return-child order, where warranted. [ 61 ] Overall, I find s. 16.1 sufficient to provide jurisdiction to make a return-children order, if appropriate in the circumstances. (For a helpful review of the Court’s jurisdiction in divorce and corollary relief (including parenting) matters, see Payne and Payne (cited above) at pp 184-188.) [ 62 ] With no evidence showing the launch of any Chilean parenting proceedings, we are not yet (and may never be) in the zone of forum conveniens i.e. in deciding which country’s proceeding should take priority: see Payne and Payne (cited above) at pp 186 and 187.

5. Parens patriae jurisdiction in any case [63] If jurisdiction to grant a return-child order is not found in any of the above sources, it can be found in the Court’s parenspatriae jurisdiction (assuming it is exercisable in respect of children not presently in Alberta (or Canada) – on this aspect, see (in favourof such jurisdiction) Yassin v Loubani, 2006 BCCA 509), as explained in Nafie v Badawy, 2015 ABCA 36: In addition to the powers granted by statute, this Court has inherent parens patriae jurisdiction, which gives it the power to act inthe best interests of children.

The exercise of that jurisdiction was described by the Supreme Court in E (Mrs.) v Eve, (SCC), [1986] 2 SCR 388 at 389-390, 31 DLR (4th) 1 [Eve] as follows: Its exercise is founded on necessity--the need to act for the protection of those who cannot care for themselves. The jurisdiction isbroad. Its scope cannot be defined. It applies to many and varied situations, and a court can act not only if injury has occurred but also ifit is apprehended. The jurisdiction is carefully guarded and the courts will not assume that it has been removed by legislation.

While the scope of the parens patriae jurisdiction is unlimited, the jurisdiction must nonetheless be exercised in accordance with itsunderlying principle. The discretion given under this jurisdiction is to be exercised for the benefit of the person in need of protection andnot for the benefit of others. It must at all times be exercised with great caution, a caution that must increase with the seriousness of thematter. This is particularly so in cases where a court might be tempted to act because failure to act would risk imposing an obviouslyheavy burden on another person.

Parens patriae jurisdiction is not dependent on whether or not there is a legislative gap. This Court has used the “legislative gap”approach (from Beson v Director of Child Welfare (NFLD), (SCC), [1982] 2 SCR 716 at 722, 142 DLR (3d) 20) in areasons for judgment reserved decision to hold that the parens patriae jurisdiction may only be invoked in the absence of applicablelegislation and in the best interests of the child: C(ES) v P(DA) (1997), 1997 ABCA 285 , 152 DLR (4th) 439 at 445, 206AR 276 (CA).

The Court allowed an appeal on the basis that the trial judge “had no jurisdiction to make the access order under theDomestic Relations Act or any other legislation, and no basis for doing so under the Court’s inherent parens patriae jurisdiction”: at 441.

However, in Eve, the Supreme Court held that, “even where there is legislation in the area, the courts will continue to use theparens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of thosewho fall within its ambit”: at 411. [paras 90-92] [emphasis added] [64] In Bayer-Mestiri v Mestiri, 2020 ONSC 4249 (predating the Divorce Act’s relocation provisions), Faieta J. invoked suchjurisdiction to make a return-child-from-outside-Canada order: The Hague Convention and thus

section 46 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, are inapplicable. As a result, I relyon this Court’s parens patriae jurisdiction, which is preserved by s. 69 of the Children’s Law Reform Act to grant a temporary orderfor the return of the children held in Tunisia to Toronto. This Court has the jurisdiction to make such Order as the children were“habitually resident” in Ontario at the commencement application for the order” within the meaning of s. 22(1)(

a) of the Children’s LawReform Act.

Given that: 1) the children were born in Toronto, Ontario, Canada; 2) have lived their entire life in Canada before being detainedby the Respondent in Tunisia since March, 2020; 3) the Applicant, who resides in Toronto has interim sole custody of the children, Ifind that it is in their bests interests to make an Order requiring that the Respondent immediately, and at his own cost, return thechildren to Toronto and into the care of the Applicant. [paras 6 and 7] [emphasis added] [65] See also KF v JF, 2022 NLCA 33 A defining feature of [Hague] 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 whileordering a child 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). [66] And Corlett v Corlett, 2021 ONSC 6406 (McSweeney J.) at paras 1 and 2 (another example of a parens-patriae-based return-child order. 6.

Conclusion on jurisdiction to grant return-children order [67] With one or more of the above sources of jurisdiction applying here, I find that this Court has jurisdiction, where appropriate,to grant an interim return-child order where habitually-resident-in-Alberta children have been relocated out of Canada in breach of theDivorce Act’s relocation provisions. F.

Whether a return-children order should be granted [68] The mother breached s. 16(9) in removing the children in the circumstances here, and (as discussed above) the Court hasjurisdiction to order that the mother return the children to Edmonton pending her adherence to s. 16.9 (this time giving the requiredadvance notice) and, assuming continuing objection by the father, a court determination in Alberta of whether a mother-and-childrenmove to Chile should be approved. [69] The latter (relocation merits) review would focus on the best interests of the children, both the core factors outlined in s. 16and the expanded (relocation-focused) factors in ss. 16.92(1). [70] Does the Court apply those same factors when gauging whether the children should be returned to Canada on an interim

basis? 1. “Best interests of children” dimension in interim return-children applications [71] The answer is no, as explained by the Supreme Court of Canada in F v N, 2022 SCC 51, a non-Hague Convention return-of-child case involving the Children’s Law Reform Act (Ontario), which provides useful guidance on the relevant (interim-return-child-or-not) factors in the present Divorce Act context: The Mother is not mistaken to point to the importance of the best interests of the child principle.

As a general rule in Canadian familylaw, it is undoubtedly the case that the best interests of the children are the paramount consideration for all decisions that concernchildren and that best interests are measured from the child’s perspective (see, e.g.,Young v. Young, (SCC), [1993] 4S.C.R. 3; Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481, atpara. 58; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, atpara. 9).

This is no less true in matters of international abduction, whatever the child’s country of origin, and whether or not the HagueConvention governs the dispute. That said, the Mother’s submissions misapprehend the manner in which the CLRA would have the best interests principle apply to ss. 40and 23. The legislature’s overriding concern for upholding the best interests of the child principle is encoded in the rules of the CLRA(Ojeikere, at para. 17).

Under the statutory scheme, the best interests test calls for a “differing application” in questions ofjurisdiction and determinations on the merits (C.A. reasons, at para. 187, per Brown J.A.). On the one hand, when Ontario courts arecalled upon to make parenting or contact orders on the merits, the best interests of the child are to be comprehensively assessed in light ofthe factors listed in s. 24 of the CLRA.

On the other hand, when courts determine whether Ontario should decline jurisdiction infavour of foreign courts and return children, they are deciding, fundamentally, which court will decide on custody, not custodyitself. I agree with Brown J.A.’s explanation: “[the children’s] immediate legal interests concern where the issue of their custodyshould be determined, not who should have custody”, he wrote, and “[t]he best interests test must be applied in that context”(para. 187).

As counsel for the Attorney General of Ontario explain in their helpful factum, the CLRA presumes, following an abduction, that thechild’s best interests are aligned with their prompt return to the jurisdiction of their habitual residence unless there areexceptional circumstances that justify Ontario courts taking up jurisdiction (I.F., at para. 6). The premise that the children’s best interests are favoured by their timely return to their home jurisdiction is sound. Childabductions harm children (Balev, at paras. 23-25; Ojeikere, at para. 16; A.

Grammaticaki-Alexiou, “Best Interests of the Child inPrivate International Law”, in Collected Courses of the Hague Academy of International Law (2020), vol. 412, 253, at p. 325). AsMcLachlin C.J. explained in Balev, “[t]he children are removed from their home environments and often from contact with theother parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, schoolsystems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution ofcustody issues.

None of this is good for children or parents” (para. 23). Moreover, resolving parenting issues in the children’shome jurisdiction fosters stability, while ensuring that custody will be determined by the authorities of the place with which thechild has the closer connection, which is an objective set out under s. 19 of the CLRA. Indeed, the jurisdiction from which thechildren have been removed is usually in the best position to determine which arrangement will be in their best interests (Bolla v.Swart, 2017 ONSC 1488, 92 R.F.L. (7th) 362, at para. 38; W.D.N. v.

O.A., 2019 ONCJ 926, 35 R.F.L. (8th) 190, at para. 51; Droit de lafamille — 131294, at para. 110). This is explained by the fact that “the courts of the child’s State of habitual residence ... generallywill have fuller and easier access to the information and evidence” relevant to making a “comprehensive best interests’assessment” (Hague Conference on Private International Law, 1980 Child Abduction Convention — Guide to Good Practice,

Part VI,Article 13(1)(b) (2020) (“Guide”), at para. 15; see also J. M. Eekelaar, “International Child Abduction by Parents” (1982), 32 U.T.L.J.281, at p. 301). Consequently, at the preliminary stage of deciding jurisdiction, it is not the role of the judge to conduct a broad-based bestinterests inquiry, as they would on the merits of a custody application. Instead, the judge must determine if the court shouldexercise jurisdiction .... [paras 61-65] [emphasis added] [72] Same here: the current focus is not whether relocation to Chile is in the children’s best interests.

It is deciding whether themother should be obliged to follow the proper relocation process, with this Court then hearing the relocation merits, and, in themeantime, whether the children should be returned to Edmonton. [73] In that exercise, where the question (in part) is where the children should be in the meantime, there is, in most cases, aninherent “best interests will be maintained” guarantee in returning children to their habitual residence pending the outcome of therelocation motion, as explained by the SCC above. [74] Returning the children to their habitual residence (Edmonton), which residence the parents presumably found to be in thechildren’s best interests for 14 years, and allowing the Court here to decide on the relocation merits is in their best interests for the SCC-highlighted reasons. [75] If it turns out the proposed relocation to Chile is not approved, the children will already be in, and will continue to be in, whatwas found to be the better place for them i.e.

Edmonton. [76] If the proposed relocation is approved, they can then move with the mother to what will have been found to be an even betterplace for them. [77] It might be different if any evidence showed the children’s Edmonton life to be detrimental or harmful to them in any way.But the mother’s evidence included nothing to that effect i.e. that the children’s interests were being negatively affected or compromisedwhile living here. In a nutshell, she asserts that the father was not interested in the children and had disengaged from them. (As noted,

he disputes this.) But, even if the mother’s account is true, per her, the children’s lives were fine under her wing here: it was fundamentally her own dissatisfaction about continued life in Canada that apparently drove her move (with them) to Chile.

And her move effectively eliminated any possibility of the children rehabilitating their relationship with the father (if actually needed) or the continuation and possible deepening of that already-solid (per him) relationship. [ 78 ] Ordering the children to be returned to Edmonton would ensure the interim (at minimum) continuation of what I find to have been an acceptable status quo here, with that being in their best interests.

Per YZVM v DTT , 2022 ABCA 87 (upholding Dario J.’s return-child order in a case starting before but ending after the Divorce Act ’s relocation provisions came into effect): The rationale for the amendments requiring notice of a relocation was to help protect children’s relationships with specified individuals. Notice allows the parties the opportunity to discuss the proposed relocation and attempt to resolve issues: “The Divorce Act Changes Explained” (3 June 2020), online: Government of Canada https://www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/index.html .

Thus, the amendments ensure the status quo pending a proper hearing, if necessary, which is in the best interests of the children involved. [para 20] [ 79 ] On status-quo restoration as necessarily or at least likely serving children’s best interests in a wrongful-removal setting, see also Ivan v Leblanc , [cite] (McKelvey J.) There is conflicting evidence as to whether the new school arrangements made for the child in Keswick are preferable to the ones which were in place in the City of Kawartha Lakes.

I am not able to make a clear determination based on the information before me that the child would receive better educational opportunities in either the City of Kawartha Lakes or Keswick. However, it is apparent that the move to Keswick has in a significant way altered the respondent’s access.

Given that the respondent has exercised considerable access during the week as well as alternate weekends and given the importance of maintaining a close relationship with the respondent I have concluded it is in the best interests of the child to maintain the status quo as it existed on March 12, 2012 until the court has a full opportunity to consider all of the potential consequences from the proposed move .

I also accept that the best interests of the child would be served by accepting the validity of the court order until the court has the benefit of a motion to change before it with more complete information about the advantages and disadvantages of the proposed move. [para 21] [emphasis added] 2.

Need to deter self-help remedies [ 80 ] Granting a return-children order would also bring home to the mother that the relocation rules are not optional i.e. that the Divorce Act process must be followed (which, again, includes a dispensation power, which the mother did not ask for first time round), absent exceptional circumstances, which I do not see here. Per YZVM v DTT (cited above): The amendments also deter “self-help”. ... the chambers judge was deciding the father’s application for the return of the children after the mother had moved them without the court’s permission and without notice to the father.

The father’s application was filed in June 2021 and the hearing did not occur until August 2021. In that period, the mother did not file a cross-application seeking an order permitting the children to move to Grande Prairie and she had still not filed such an application by the time the hearing took place .

In these circumstances, where the relief sought by the father was aimed at redressing the mother’s unilateral move and restoring the status quo , it was reasonable for the chambers judge to be concerned about delay and whether her order would “put the children on a particular path” where it would be “harder for the Court to reverse the direction”. [paras 21 and 27] [emphasis added] [ 81 ] Same here, where the only proceeding before me is the father’s application for a return-children order (plus ancillary relief) i.e. where the focus is “redressing the mother’s unilateral move and restoring the status quo .” [ 82 ] The Court of Appeal offered similar observations in Bolan v Bolan , 2022 ABCA 356 Mobility applications are inherently difficult as they inevitably mean that children face changes to their status quo and parental relationships.

The Divorce Act amendments impose a statutory obligation on parents who seek to relocate to provide advance notice and establish a process enabling relocations to be addressed in an orderly fashion , thus avoiding the problems that flow from a unilateral relocation by one parent with no or insufficient notice. The amendments signal a view by Parliament that unilateral relocations by a parent are strongly discouraged and rarely in a child’s best interests.

A parent who fails to comply with the notice requirements can be expected to provide compelling reasons to explain that failure and why the expressly contemplated court order that could modify or vacate the notice requirement was not obtained .

Parents who fail to do so may face cost consequences, whatever the result. [para 4] [emphasis added] [ 83 ] The mother offered no reasons to explain, or try to explain, her notice failure or why she did not seek notice dispensation. [ 84 ] See also Kent J. in Roman-Manarovici v Manarovici , 2022 BCSC 1159 , featuring the relocation provisions in BC’s Family Law Act and a no-notice relocation: In my view, where, as here, the children have been deliberately and wrongfully relocated to another province against the express wishes of the parent remaining in the province where they had habitually resided, that factor very strongly militates in favor of the other province not only declining jurisdiction but also issuing an order requiring the abducting parent to return the children.

The underlying jurisdictional assumption in favor of the habitual residence should prevail unless exceptional circumstances exist. [para 15] [emphasis added] [ 85 ] And AJM v CJM , 2023 BCSC 1000 (Kirchner J.): Lastly, there is the fundamental point that regardless of A.J.M.’s status in relation to C., C.J.M. made this relocation without complying with the mandatory notice requirements of either the FLA or the Divorce Act . As I said in B.M.W.G. , the notice

requirement is a fundamental element of the statutory scheme and the court expects parents to comply with those statutoryrequirements. At a minimum, C.J.M.’s lack of notice deprived A.J.M. of her right under s. 67(1) of the FLA to have C.J.M. use “bestefforts to cooperate” with her “for the purposes of resolving any issues relating to the proposed relocation.” A.J.M. was entitled to thatprocess whether or not she was a guardian.

In my view, all of these circumstances [including some catalogued in earlier paragraphs not reproduced here] militate strongly infavour of an order that C.J.M. return C. to North Vancouver without delay. This is a case where C.J.M. has undertaken a self-help remedy while concealing his actions from C.’s mother. He did so at a time where she was actively pursuing an application torestore her status as C.’s guardian following what I view to be a questionable consent order taking away those rights.

That conduct isnot something the Court is able to condone by permitting C.J.M.’s unilateral and without-notice relocation of C. to continue.[paras 65 and 66] [emphasis added] [86] And Kirchner J.’s decision to the same effect in YQ v JD, 2022 BCSC 2189 (paras 60-71), particularly paras 70 and 71: In short, the respondent's wrongful removal of A.D. from British Columbia is presumptively contrary to A.D.’s best interests. Ithas not merely interfered with meaningful contact between A.D. and her mother, it has put a stop to it. I am not persuaded thatvideo chats are any kind of substitute for meaningful contact.

Nor am I persuaded that the respondent has or will put in the effort to makesuch video calls productive. A.D.’s best interests require that she be reunited with her mother. Returning A.D. to British Columbia is therefore animperative to remedy the respondent's unlawful removal of A.D. and his retention of her in China. That is an abduction that mustbe addressed by way of an order for her return. It is also in A.D.’s best interests. [87] See also Singh v Singh, (ONCJ) (Wilkins PCJ) (pp 209-211). 3.

Other relevant factors on an interim return-children application [88] What other factors, if any, should drive the “return children or not” analysis? [89] Whether it is (as here) the father seeking to enforce the notice provisions after the fact (i.e. seeking the return of the childrenand adherence to the notice provisions then) or (in theory) the mother seeking after-the-fact dispensation from them (per para 16.9(3)),the core issue would be the same: should the children be returned pending a decision on the relocation merits? [90] Given this “two sides of the same coin” finding, the factors bearing on a dispensation application are equally applicable to anenforce-notice-after-unauthorized-move application. [91] The former factors were usefully summarized by Marion J. in Lemay v Lemay (cited above): (a)the moving-parent has unilaterally moved the children without agreement or court involvement: see AJL v JGL, 2021 BCSC 249at paras 39-40; Sekyi v Sekyi, 2021 ABQB 915 at para 16; Young v Peters, 2022 ONSC 6869 at para 63(d); (b)the failure to give notice was an innocent mistake or done in bad faith (for example to try to change the status quo): BMWG [citedabove] at para 53; (c)family violence made providing notice unsafe, impractical or risky:

section 16.9(3); AJK v JPB, 2022 MBQB 43 at paras 50-52; MP vPP, 2022 BCSC 1511 at paras 17-22; EDW v DL(B)W, 2023 NBKB 18 at para 224; (d)the informational and timing requirements under

section 16.9 have substantially been met or can be remedied, or where the respondingparent has constructive or actual notice of the specific relocation plan: see Siddiqi v Khan, 2021 ONSC 5326 at para 24; KCM v SJS,2023 BCSC 435 at paras 76-77; Keeping v Keeping, 2021 ABQB 892 at paras 25-26; DDC v BJC, 2022 SKQB 79 at para 23; (e)the non-moving parent is prejudiced by the failure to provide notice: Siddiqi; KCM at para 77; (f)requiring formal notice would not likely change the result but would likely cause undue delay, expense and uncertainty; (g)there is no ongoing relationship between the children and the non-moving parent.

See, for example, similar provisions in some provincial statutes as discussed in Thompson, Legislating About Relocating Bill C-78, N.S. and B.C., 2019 28th Annual Institute ofFamily Law Conference 20, 2019 CanLIIDocs 3939 [Legislating About Relocating] at pages 6-7; and (h)the best interests of the children otherwise [require] the parent to provide the formal notice. 4. Application of those factors [92] Assessing the Lemay factors here: a. the mother moved the children unilaterally i.e. without the father’s agreement, advance notice to him, or court authorization.

Infact, she moved in the face of express notice by the father that he opposed the relocation, conveyed to her directly with his divorcestatement of claim weeks before she moved and to her counsel via emailed letter the day before she relocated; b. the move was not the product of an innocent (or any) mistake. I infer that she deliberately intended to change the status quo:what else was she doing with this move in these circumstances? c. no evidence points to the father as the source of any family violence;

d. no evidence shows substantial (or any) compliance with the notice requirements or otherwise that the father had actual or constructive knowledge of the mother’s specific relocation plan (who was relocating, when, where, and with what access proposal for him); e. the father has in fact been prejudiced by the mother’s notice breach i.e. being deprived of the status quo (discussed further below) and of the opportunity to oppose the move in advance and thus spark a court application by the mother at which he could present evidence in opposition to the move, including (as applicable) the results of any independent assessments of the children’s preferences, and, if move permission were denied, to build on the status quo parenting (i.e. to maintain or deepen his connection with the children) and, if it the move were authorized, to make submissions on post-move access; f.

I cannot tell whether giving formal notice (i.e in the circumstances here, reversing the children’s move and then giving notice) would likely not change the result i.e. whether the relocation to Chile will likely be granted in the end . The essence of the mother’s position is that the father had no meaningful relationship with the children and that, as reflected in letters written by them (exhibited by the mother), they wholeheartedly endorse the move and wish to have no connection with their father.

Per the father, before separation, his demanding work life limited but did not preclude meaningful contact with the children. After the physical separation (in January 2023), he was “still able to communicate with [the children] and to spend time with them.” His evidence included circa-2023 friendly text messages, a Father’s Day card, and happy-occasion-seeming photos from or featuring one or both children.

More recently, per him, “[the mother] cut off contact completely [between the children and me].” Per him, the mother wrote or compelled the writing of the position-on-move letters (ostensibly) from the children (apparently wholly endorsing the move to Chile). If the children return, the father intends to seek a “Practice Note 7 assessment, screening for alienation, manipulation, etc.” The mother herself sees the appointment of counsel for the children as potentially useful.

Without more evidence of the state of the father-children relationships, cross-examination of both parties, and independent assessments of the children to gauge or confirm their true wishes, I cannot conclude that relocation permission is a foregone conclusion or is even the more likely outcome; g. “no ongoing relationship” or otherwise: discussed above; and h. “ best interests of children otherwise requiring formal notice” : as noted, per YZVM (cited above), “the [notice] amendments [to the Divorce Act ] ensure the status quo pending a proper hearing, if necessary, which is in the best interests of the children involved .” [emphasis added]. (I adopt and apply here the “best interests in interim return-child settings” discussion above.) In this case, the evidence reflects an adequate or baseline-satisfactory status quo for the children in Edmonton, where they have lived since age two or three, where have most recently been living under their mother’s wing (with some contact with their father) and have many close relatives, their school lives, and presumably friends and some kind of extracurricular pursuits, with no evidence of any sub- optimal factors or forces at play in their lives. [ 93 ] I see two additional factors here: • the mother’s apparent misrepresentation , even to her own counsel, of the nature of her travel with the children to Chile.

As reflected in her counsel’s student’s email to the father’s counsel on August 3, 2023, the mother was travelling “for their summer vacation” and “has no intentions of relocating to Chile with the children.” This was six weeks after the mother had departed with the children and six days before her counsel’s “[she] has relocated to Chile and has no intention of returning” letter.

I infer that the mother’s intention from the start was to relocate, with no evidence from her as to a “move” intention emerging or crystallizing while she was in already in Chile; and • the mother’s clear disdain for court orders and proper process , as reflected in her counsel’s August 9 th letter: (again) “Even if the Court were to grant an Order, they are not coming back.” This attitude squares with her equivalent (non-)regard for the notice provisions, effectively: “I will do what I want, regardless of Canadian law or the court.” [ 94 ] As for in whose care the children should be if a return-children order is granted, the mother’s counsel argued that the father failed to propose a care plan (even interim). [ 95 ] I disagree.

Per the father’s first affidavit: If I am successful in my application [for a return-children order], I would ask for an interim without-prejudice parenting order, in a manner which the Court deems appropriate given the nature of the emergency request. I would prefer that the Children stay with me, as I am willing to rent a bigger locale to house me and the Children, but I am open to them staying with [the mother i.e. if she returned] with safeguards and conditions, on an interim without-prejudice basis, so long as it means that the Children are able to return home.

I believe that the Children would be very welcome at [their maternal aunt’s] home, their [maternal grandfather’s home] or their [maternal uncle’s home, all in Edmonton] as alternatives. [ 96 ] If the children are ordered returned, the father also seeks an order, effective on their return, for control of their passports, pending the hearing of the relocation merits. 5.

Conclusion on return-child application [ 97 ] For the foregoing reasons, the mother’s breach of the Divorce Act ’s relocation-notice rules should be remedied, in the circumstances here, by the immediate return of the children to Edmonton, where they shall reside and remain pending the mother providing proper notice and, as necessary, an order authorizing their relocation to Chile or, as applicable, an order dispensing with notice to the father and authorizing such relocation (i.e. for greater certainty, after their return to Edmonton).

[ 98 ] If the mother returns with the children, they shall reside with her full-time, with the father having such access as he and the mother may agree or, failing agreement, as I direct. [ 99 ] I am seizing myself with any application bearing on parenting or access in the period between the children’s return to Edmonton and any relocation-authorization application brought by the mother or the expiry of the notice-to-object period i.e. if the father does not object to the relocation within that period. [ 100 ] If the children return without their mother, they shall reside with the father, their maternal aunt, their maternal uncle, or their maternal grandfather, with the children having the right to select.

If it turns out that the selected party is unable or unwilling to provide a residence and care for the children during the period described above, they shall reside with any of the other identified parties (again, as they shall select) who is able and willing to provide residence and care for them during this period. [ 101 ] If none of the other parties (selected by the children) are able or willing to provide a residence and care for them during the noted period, they shall reside with the father pending the outcome of the relocation-notice and, as applicable -merits process. [ 102 ] On the children’s return, the mother or children (as applicable) shall provide their passports to the father, who will keep custody of them and, during the period in question, make no use of them i.e. no passport-needed travel by the father with the children during this period.

IV. Closing note [ 103 ] The father advised that, if a return-children order is granted, his intention is to apply in Chile for enforcement of the order by the Chilean courts.

As he explained it, those courts will apply their recognition-of-foreign-judgment test to the order and, if satisfied, enforce the order. [ 104 ] The mother’s counsel did not offer any submissions on the mechanics of this process or how it will, might or should unfold. [ 105 ] Pending the outcome of any recognition process invoked by the father (under which the children remain in Chile until its conclusion), the father shall have electronic (phone, computer or other) access to the children three times a week, at times agreeable to the children and the father, which the mother shall facilitate as necessary i.e. to the extent her involvement is needed for such contacts to occur. [ 106 ] On costs, the father was the successful party here.

He is entitled to his Schedule-C-level costs of the application. Heard in Edmonton, Alberta on August 14, 2023. Dated at the City of Edmonton, Alberta this 30 th day of August, 2023. M. J. Lema J.C.K.B.A. Appearances: Appearances: James Arendt and Jose I. Soto Forum Law LLP For the applicant father Ajay Devgun Devgun Family Law For the respondent mother