2013 ONSC 1097, 2013 ONSC 1097

CITATION : Solem v. Solem, 2013 ONSC 1097 COURT FILE NO.: 623/12 DATE: 2013/02/20 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Robert Solem Applicant AND: Marianne Solem Respondent BEFORE: Turnbull, J. COUNSEL: Darrell S. Waisberg, Counsel for the Applicant Luigi De Lisio, Counsel for the Respondent HEARD: February 13, 2013 ENDORSEMENT Overview of the Case: [ 1 ] The Applicant father has brought this application pursuant to

Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction for the return of his four children to Norway where they resided all their lives until their mother moved with them to St. Catharines Ontario in 2011.

The Applicant submits that this move was made without his consent. [ 2 ] The Respondent mother submitted that she did have his consent to the move and regardless of the court’s finding on that issue, the physical and emotional well-being of the children will be damaged if they are forced to return to the abusive environment they previously endured with their father during access visits with him. [ 3 ] Counsel for the parties agreed that in bringing this application, the Applicant does not attorn to the jurisdiction of this court.

Furthermore, both counsel agreed that the court need not hold a Case Conference pursuant to Rule 14(4/2) of the Family Law Rules, prior to hearing argument of the application. The Facts [ 4 ] I make the following findings of fact from the affidavits of the parties filed on this application. [ 5 ] The Applicant, Robert Solem and the Respondent, Marianne Solem, are Norwegian citizens who have never resided in Canada during the period of their relationship. They were married on August 23, 1997 and separated on April 19, 2011.

They had negotiated a separation agreement in June 2010 pursuant to which the parties were to have joint custody of the children with their primary residence to be with their mother. According to the agreement, Mr.

Solem was to have access visits with his children every other weekend and one day per week. [1] All holidays were to be shared between the parents. [ 6 ] The parties have four children, namely, Kristoffer Robin Solem (“Kristoffer”), born July 31, 1997, Lise Victoria Solem (“Lise”), born October 12, 1998, Ida Sofie Solem (“Ida”), born February 20, 2000, and Linus Johannes Solem (“Linus”), born January 7, 2011.

The Applicant and Respondent share joint custody of the children. [ 7 ] The children, Kristoffer, Lise, Ida and Linus, have lived with the Applicant and Respondent in Trondheim, Norway, since their respective births. The oldest three children all attended school there and each of them had a physician in that country. [ 8 ] In June of 2011, just two months after their separation, the Respondent expressed to the Applicant that she wished to take a short vacation with the children to visit her relatives in St. Catharines, Ontario.

In her affidavit sworn February 13, 2013, she acknowledged that she did not have any relatives in St. Catharines. The Applicant agreed to allow the Respondent to take a vacation with the children for approximately two weeks to St. Catharines, Ontario. At that time, he signed a consent which was witnessed by their daughter. That consent provided authority for the Respondent to travel and or move with the children to a series of enumerated countries.

However, when the Respondent realized that the consent would have to be properly witnessed and notarized, the parties agreed to obtain a more formal document. [ 9 ] On August 10, 2011, the Applicant and Respondent attended the Notary Public Office at the courthouse in Trondheim, Norway. The Applicant has sworn that he believed the sole purpose of his attendance at the office was for him to execute the travel consent form allowing the children to vacation with the Respondent in St. Catharines, Ontario. In his affidavit, Mr.

Solem stated that he was shocked that the travel consent form provided by the Respondent expressly permitted the Respondent to move abroad with the children. As this was not what the Applicant had agreed to at any point in time, he refused to execute the consent in the form in which it

was presented to him, and struck out what he believed were any terms in the consent relating to “moving” with the children. The Applicant also swore that he expressly emphasized to the Respondent that he would never agree to her permanently moving abroad with the children. Once the Applicant revised the travel consent form to solely allow the Respondent to vacation with the children, he signed it. [ 10 ] The consent which was signed by him was included in the application record. [2] The first paragraph clearly indicates consent to the Respondent travelling or moving with the children.

However in the penultimate paragraph, just above where he signed, he struck out the words “move with my children within Norway”.

After that deletion, the operative paragraph read (the words in parentheses below had a line drawn through them but are otherwise readable): She may travel or [move with my children within Norway] or to following foreign countries: Sweden, Denmark, Spain, France, Canada, Iceland, Portugal, Australia, United States of America, China, Japan, Turkey and Singapore. [ 11 ] Astrid Synnøve Hustoft, Senior Executive Officer at the Notary Public Office was a witness to this disagreement between the Applicant and Respondent and also witnessed the Applicant execute the travel consent form only after he revised it.

She gave a witness statement to the police which indicates she remembered being present with the parties before the consent was signed and she remembered that there was a tense atmosphere between the parties. She stated that Mr. Solem did not approve of all the contents of the document and before Mr. Solem signed it, he “took out a word that was connected to moving”. [ 12 ] On or about October 7, 2011, the Respondent and the children departed for St. Catharines, Ontario.

The children’s respective schools in Norway were advised by the Applicant that the children would be absent for a vacation of approximately two weeks. When the Respondent had not returned from her vacation with the children in the last week of October, the Applicant became very concerned, especially as he could not contact the Respondent. The Applicant swore that he contacted the children’s respective schools in Norway and he was informed that the children had not yet returned from their vacation. In fact, the Headmaster of Kristoffer’s school, Anne Berit Olaussen (“Ms.

Olaussen”), informed the Applicant that the Respondent had sent the school a text message advising Kristoffer would be absent from the school for two weeks as he was going on vacation. When Kristoffer did not return after two weeks, Ms. Olaussen tried unsuccessfully to reach the Respondent. On October 26, 2011, the Respondent finally contacted Kristoffer’s school advising Ms. Olaussen that she was contemplating permanently residing in Canada with the children.

On November 5, 2011, the Respondent sent an email to Kristoffer’s school withdrawing him from the school. [3] [ 13 ] Once the Applicant recognized that the Respondent had no intention of returning to Norway with the children, he reported the children missing to the local Norwegian Police on October 25, 2011. [ 14 ] The Applicant then sought the assistance of the Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction. With the assistance of his Norwegian Solicitor, Halvour Hjelm-Hansen (“Mr.

Hansen”), he provided information and documentation required by both the Norwegian and Ontario Central Authority, and was advised that the Ontario Central Authority would forward his request for the voluntary return of the children, Kristoffer, Lise, Ida and Linus, directly to the Respondent. [ 15 ] The Norwegian Central Authority provided the Applicant with a travel consent form used by Ms. Solem to leave Norway with the children. It was different from the one he signed before the Notary Public. Ms. Solem has sworn that Mr.

Solem said she could “white out” the portion of the consent he had stroked out, which is denied by Mr. Solem. The consent she used is found at tab 3(

J) to his affidavit. The portion of the original consent he signed which was stroked out by him has been whited out together with the words “or” which preceded and followed the stroked out words and the words “to following foreign”. The operative part of the amended consent reads: She may travel Countries: Sweden, Denmark, Spain, France, Canada, Iceland, Portugal, Australia, United States of America, China, Japan, Turkey and Singapore. [ 16 ] It is the Applicant’s belief that the Respondent falsified the travel consent form so that she could move abroad with the children in accordance with

section 40 of the Norwegian Children Act , which states that one parent is not permitted to move out of the country with the children of the marriage without the consent of the other parent, where the parties have joint custody of the children. [4] The Respondent did not dispute that this legislation was applicable at the time she left Norway with the children.

Section 40 also states that if there is a dispute about with whom a child should live permanently, the child must not move abroad until the matter has been decided. [ 17 ] On May 15, 2012, Cyndi Coates, Case Manager for the Ontario Central Authority sent an email to the responsible person in the Norwegian Central Authority that the Respondent had verbally advised her that she would not return the children to Norway and that she had no interest in cooperating with the Applicant’s voluntary return request. [ 18 ] The Applicant has attempted to have the Respondent return Kristoffer, Lise, Ida and Linus voluntarily via the Respondent’s mother, Astrid Storsand (“Ms.

Storsand”), the Central Authority, and direct correspondence to the Respondent, without success. Position of the Respondent [ 19 ] Ms. Solem has asserted, as summarized above, that she had the consent of Mr. Solem to remove the children permanently from Norway and that he had full knowledge of her intentions. She further asserted that he participated in choosing the countries in which he did not want his children to live. [ 20 ] She has listed a number of instances in which the Applicant was physically and mentally abusive to the children. She

mentioned an incident in which he allegedly punched a 6th grader in the face causing the child to bleed from the nose. On anotheroccasion, he allegedly put the children’s pet rabbits in a plastic bag and bludgeoned them with a hammer. [21] She noted that when she left the marriage, she took their youngest child with her to live at her parents’ home. Within a day,the other three children walked the two kilometers to their grandparents’ home to live there with their mother.

They lived there until theyleft for Canada. [22] In support of her contentions, the Respondent has affixed as Exhibit A to her affidavit a statement signed by her mother onSeptember 13, 2012. Trude Nilsen, the Notary Public before whom it was signed, has only confirmed that it was Astrid Storsand whosigned the document. However, the statement was not given under oath. [23] In that statement, Ms. Storsand asserts that the older children Kristoffer, Lise and Ida have told her that their father has beatenthem and been otherwise violent towards them.

They apparently do not understand why he gets angry with them and physically punishesthem. They have told her that they are afraid of their father. [24] Ms. Solem asserts that Mr. Solem exercised minimal access visits with his children so that he would be obliged to pay lesschild support. She stated that when the children went to his residence, he would disappear for hours on a bicycle ride and leave thechildren alone to prepare his meal when he returned home. He reportedly refused to pick them up or drop them off for the access visits. [25] Ms.

Solem asserts that with the sale of the matrimonial home, he now lives with his parents and two sisters and their childrenin a four bedroom home. In other words, he does not have a home for the children. [26] Ms. Solem swore in her affidavit that the children have transitioned well into Canadian culture and society. Apparently thechildren are doing very well in school. Lisa, who apparently was struggling with her grades while living with her father in Norway,appears from her report cards to be flourishing in school at St.

Catharines Collegiate. [27] The Respondent states that the children lived with her in Norway of their own free choice and none of them have expressed adesire to go back to live in Norway on a permanent basis or to reside with their father. At this time, she has applied to the CanadianImmigration authorities to be granted refugee status and that claim is still outstanding. Analysis [28] I concur with the submission of counsel for the Applicant that prima facie, on hearing of an application for an order for thereturn of the children to Trondheim, Norway, pursuant to

Article 3 and 12 of the Hague Convention on the Civil Aspects of InternationalChild Abduction and sections 22 and 25 of the Children’s Law Reform Act (“CLRA”), this Court does not have jurisdiction to determinethe custody of the children, Kristoffer, Lise, Ida and Linus. Our courts have held that a person who appears at court only to protest thejurisdiction of the court does not attorn to the jurisdiction. Gourmet Resources International Inc. (Trustee of) v. Paramount Capital Corp(1991), 5 C.P.C. (3d) 140, [1991] O.J. No. 2293 (Gen. Div.) at p. 5 QL; Dovenmuehle v.

Rocca Group Ltd. (1981), (NB CA), 34 N.B.R. (2d) 444, [1981] N.B.J. No. 102 (C.A.) at para. 29; affd, (SCC), [1982] 2 S.C.R. 534. [29] While it is not determinative of the matter, the court also can and has taken into account that the Central Authority of Norwayhas absolute discretion to accept or to decline a matter and in this case has found the matter to be a bona fide issue with respect to thecustody and access of the children. Jurisdiction of the Ontario Courts [30] A court in Ontario may exercise its jurisdiction to make a child custody or access order under the Children’s Law Reform ActR.S.O. 1990, c.

C.12, s. 22(2) (“CLRA”) only in two circumstances. One is that the child is habitually resident in Ontario. The other isthat, if the child is not habitually resident in Ontario, all of the six criteria specified in the CLRA for making an order concerning a non-resident child are met. Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 22(1); Turner v. Viau (2002), (ON CA),26 R.F.L. (5th) 440, [2002] O.J. No. 1229 (Ont. C.A.) at para. 9; Obregon v. Obregon (1984), (ON SC), 39 R.F.L. (2d)164, [1984] O.J.

No. 668 (U.F.C.) at paras 20-21 The meaning of “habitually resident” [31] “Habitually resident” is defined in s. 22(2) of the CLRA: (2) — A child is habitually resident in the place where he or she resided, (

a) with both parents; (

b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent oracquiescence of the other or under a court order; or (

c) with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.

[32] The term “habitually resident” is not expressly defined in the Hague Convention. In Kurotowsaka-Wooff v. Wooff, (2004), (ON CA), 5 R.F.L. (6th) 104, [2004] O.J. No. 3256 (C.A.) at para. 8 the Court of Appeal said: 8 The term “habitually resident” is not defined in the Convention. However, the English courts have provided Canadian courts withguidance on the

interpretation and application of this term in the cases of Re J. (A Minor) (Abduction: Custody Rights), [1990] 2 A.C.562 (H.L.), and R. v. Barnet London Borough Council, [1983] 2 A.C. 309 (H.L.). See Chan v. Chow (2001), 2001 BCCA 276 ,199 D.L.R. (4th) 478 at paras. 30-34 (B.C.C.A.); Kinnersley-Turner v. Kinnersley-Turner (1996), (ON CA), 94O.A.C. 376 at paras. 19-20.

The principles that emerge are: • the question of habitual residence is a question of fact to be decided based on all of the circumstances; • the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”; • a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, suchas employment, family, etc.; • a child’s habitual residence is tied to that of the child’s custodian(s). [33] Ontario jurisprudence has confirmed that the definition of “habitually resident” has the same meaning in the HagueConvention as it has in s. 22(2) of the CLRA.

Medhurst v. Markle (1995), (ON SC), 26 O.R. (3d) 178, 17 R.F.L. (4th)428, [1995] O.J. No. 3085 (Gen. Div.) at paras. 25-26; Rogala v. Rogala, [2001] O.T.C. 339, [2001] O.J. No. 1683 (S.C.J.) at paras. 41-52. [34] I find that the Applicant did not consent to the Respondent moving to Canada with the children. She changed the consentpresented to the Norwegian authorities by whiting out certain words which would lead them to have an understanding different fromwhat the document was intended by him to permit.

I find that in the consent the Applicant signed before the Notary Public, he strokedout the words “move with my children within Norway and other countries” and only consented to the Respondent travelling with thechildren. She then whited the words he had stroked out and used an altered document to leave Norway. I find that she did that so thatquestions would not be raised by the Norwegian authorities about the consent at the time of her departure.

If they did question thedocument and contact the Applicant, she would not have been permitted to leave the country. [35] I further find that the statement given by Astrid Synnove Hustoft to the police is confirmation from an arm’s length witnessthat there was an issue over moving at the time of signing the consent and it confirms the Applicant’s position that he was opposed toany idea of the Respondent permanently moving with the children. [36] The surreptitious nature of her departure is further confirmed by the fact that the Respondent did not notify the children’sdoctors or their schools of the permanent move. [37] For the foregoing reasons, the Respondent has not satisfied this court on the balance of probabilities, that she had the “theconsent, implied consent or acquiescence” of the Applicant to move permanently to Canada with the children. [38] I further find that Kristoffer, Lise, Ida and Linus lived continuously with the Applicant and Respondent in Trondheim,Norway their entire lives until the Respondent unilaterally and surreptitiously retained the children in St.

Catharines, Ontario, in October,2011. I find that the children’s place of habitual residence, within the meaning of

Article 3 of the Hague Convention and s. 22 of theCLRA, has always been Trondheim, Norway. The children are not habitually resident in Ontario. [39] However, that does not end the analysis which the Court must undertake. Best Interests of the Children [40] The court hearing a Hague Convention application does not determine the issue of custody of the subject child and does notconsider the best interests of the child. The Court’s primary obligation is to ensure the child is returned to the place where those bestinterests ought to be determined. Jabbaz v. Mouammar (2003), (ON CA), 38 R.F.L. (5th) 103 (Ont.

C.A.) at para.24, quoting the Court in J.E.A. v. C.L.M. (2002), 2002 NSCA 127 , 220 D.L.R. (4th) 577 (N.S.C.A.) at para. 30. However,

there is a residual discretion in certain cases, for an Ontario court to accept jurisdiction with respect to such a matter in the definedcircumstances enumerated in s. 22 (1)(

b) of the CLRA or where the return of the child to his/her country of habitual residence wouldexpose the child to grave danger or risk of harm. [41] The principal objective of the Hague Convention was well articulated in Medhurst v. Markle (1995), (ONSC), 26 O.R. (3d) 178, (Gen.

Div.) at pp. 181-182; ... is to prevent the harmful practice of unilateral removal or retention of children from their habitual residence and to require that what isin the best interest of the child be determined by the jurisdiction of the child’s habitual residence at the time of the removal or retention.An application under the Hague Convention is not an application for custody. The welfare of the child, on a Hague application, isrelevant only to the question of whether the return of the child would expose him or her to grave risk of physical or psychological harmas provided in art. 13(b).

I believe it to be the intention of the Hague Convention to severely limit the discretion of the court in thecountry to which the child has been taken, or in which the child is retained, to do other than order the return of the child once it is foundthat the threshold conditions have been met.... [42]

Article 3 of the Hague Convention provides that the retention of a child is to be considered wrongful where it is in breach ofcustody rights under the law of the State in which the child was habitually resident immediately before the retention, and at the time ofretention those custody rights were actually exercised, either jointly or alone, or would have been exercised but for the retention. [43] As this Court had found above, Kristoffer, Lise, Ida and Linus are habitually residents in Trondheim, Norway within themeaning of both the Hague Convention and the CLRA. [44] Under

Article 5(

a) of the Hague Convention, “Rights of Custody”, are defined to include rights relating to the care of theperson of the child and, in particular, the right to determine the child’s place of residence. [45] The custodial rights of parents are determined in accordance with the law of the child’s habitual residence. The SupremeCourt of Canada has stated W. (V.) v. S. (D.), (SCC), [1996] 2 S.C.R. 108, [1996] S.C.J.

No. 53 at para. 23: .... [A]lthough the Convention adopts an original definition of rights of custody, the question of who holds the “rights relating to the careof the person of the child” or the “right to determine the child’s place of residence” within the meaning of the Convention is in principledetermined in accordance with the law of the state of the child’s habitual place of residence (Black and Jones, [Case comment onThomson v. Thomson (1994), 12 C.F.L.Q. 321], at p. 331; L. Silberman, “Hague Convention on International Child Abduction: A BriefOverview and Case Law Analysis” (1994), 28 Fam.

L.Q. 9, at p. 18). [46] In ascertaining whether Kristoffer, Lise, Ida and Linus were wrongfully retained in Ontario, the Ontario courts may takejudicial notice of Norwegian law and judicial or administrative decisions without formal proof of foreign law or recognition of foreigndecisions. [47] As noted in paragraph 16 hereof, according to

section 40 of the Norwegian Children Act[5], one parent is not permitted tomove out of the country with the children of the marriage without the consent of the other parent, where the parties have joint custody ofthe children. As confirmed by the Norwegian Central Population Register, the Applicant and Respondent have joint custody of thechildren, Kristoffer, Lise, Ida and Linus.

This confirms Norway’s recognition that the Applicant had and was exercising custody rights atthe time the Respondent removed the children from Norway and wrongfully retained them in Canada. [48] The Respondent’s retention of Kristoffer, Lise, Ida and Linus in Ontario was wrongful within the meaning of Art. 3 of theHague Convention. The Applicant was exercising rights of custody in Norway. The Respondent’s retention of the children in Ontario hasbreached and continues to breach the Applicant’s custody rights. Return of the children [49]

Article 12 of the Hague Convention provides that where a child has been wrongfully retained, and at the date proceedings arecommenced, less than a year has elapsed from the date of the wrongful retention, “the authority concerned shall order the return of thechild forthwith”. The Applicant commenced proceedings under the Hague Convention for the return of Kristoffer, Lise, Ida and Linusless than a month after he became aware the Respondent was wrongfully retaining the children in Ontario. [50] The Respondent has invoked

Article 13(

b) of the Hague Convention, arguing that she should not be required to return thechildren to Norway because, in the words of that provision, “there is a grave risk that their return would expose the children to physicalor psychological harm or otherwise place the children in an intolerable situation”. In the case of Finozio v Finozio, 1999 CanLitll 1722(ONCA), the court affirmed that

Article 13(

b) should be narrowly applied and that the courts should assume that the courts of thecontracting states to the Hague Convention are equipped to make appropriate decisions to protect the well-being of the child. [51] I am satisfied that returning Kristoffer, Lise, Ida and Linus to Trondheim, Norway and to their father’s care as part of thepresent shared custody regime between the Applicant and the Respondent would not expose them to any grave risks or physical orpsychological harm. In reaching that conclusion, I have considered the following factors: a. the Applicant and Respondent concluded a mediated agreement with respect to joint custody.

b. the Norwegian Central Population Register agreed that the Applicant has joint custody of the children and has exercised itsdiscretion to participate in this matter. c. The Respondent was prepared to return the children to Norway for their summer vacation in 2012 subject to certain financial issuesbeing resolved. If she had serious concerns for their well-being, she would clearly not have been prepared to permit them to be in thecare of their father for such an extended time. d.

There is no objective evidence before this court that either the police or the equivalent of our child welfare authorities have beeninvolved with the father or the family. In fact, Mr. Solem works in the Norwegian school system and has had to satisfy his employer thathe had no criminal record. A transcript of the police records showing he has no criminal record is affixed as exhibit A to the affidavit ofTanya Chaterji.[6] e.

There is no allegation or objective evidence that the Respondent has not been subject to a restraining order, a supervised accessorder or other judicial intervention relative to his interactions with his children. Section 22(1) (

b) of the CLRA [52] The Applicant father submitted that the criteria in s. 22(1)(

b) of the CLRA for the court to take jurisdiction over custody of anon-resident child have not been met. I concur with that submission. [53] That statutory provision reads as follows:

(1) A court shall only exercise its jurisdiction to make an order for custody or access of or access to a child where, (

b) although the child is not habitually resident in Ontario, the court is satisfied, (

i) that the child is physically present in Ontario at the commencement of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in Ontario. (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where thechild is habitually resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario, (

v) that the child has a real and substantial connection with Ontario, and (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [54] I will briefly deal with each of these criteria. Presence of the Children in Ontario [55] As this Court has decided above, the children are present in Ontario, but only because the Respondent surreptitiously removedthem from Trondheim, Norway to St. Catharines, Ontario under the guise of taking the children on vacation to see relatives for twoweeks.

Substantial evidence concerning the best interests of the child [56] It is not sufficient that Ontario have some evidence concerning a child’s best interests. The evidence must be substantial(emphasis mine). [57] I find that substantial evidence concerning the children’s best interests is not available in Ontario. The children have lived inNorway their entire lives. They have built social networks in Norway, have attended school in Norway, and have their respective doctorsin Norway. Their father, their grandparents, relatives, teachers, instructors and childhood friends are all in Norway. [58] In Nordin v.

Nordin, (2001), (ON SC), 17 R.F.L. (5th) 119, [2001] O.T.C. 112, [2001] O.J. No. 599(S.C.J.), the court dealt with somewhat of a similar situation dealing with children of Japanese origin. Mesbur J. at paras. 8-10 wrote: The potential witnesses in Ontario only have intermittent knowledge of the children’s lives, and the ability of their parents to meet theirneeds. Their father, their teachers, their long-standing friends, are all in Japan.

The objective evidence their teachers, doctors,extracurricular leaders (like Cubs and Brownies) and family friends can provide for the three and a half years prior to the separation areall in Japan. As the court stated in Gilbert,[7] “independent witnesses are often the deciding factors in these cases”. The court looks fornon-aligned witnesses who can give the court an objective view of the children. Although the children now have teachers, instructors anddoctors here, they are of little assistance in providing the historical view of the children’s interests, and their relationship with both

parents, the court finds most helpful. Truly independent evidence is more readily available in Japan, as opposed to the very recentevidence the wife is no doubt structuring here in Ontario since her arrival here. [59] I find that those comments are applicable in many respects to the case at bar. Proceedings pending elsewhere and Extra-Provincial Order [60] An application for custody of or access to the children is not pending before an extra-provincial tribunal in another placewhere the children are habitually residents. Further, an extra-provincial custody or access order has not been recognized in Ontario.

Real and substantial connection with Ontario [61] The children, Kristoffer, Lise, Ida and Linus do not have a real and substantial connection with Ontario. While their mother iscurrently resident here while seeking refugee status, her affidavit indicates that the children are happy here and apparently doing well inschool. The family plan was for them to visit Ontario for two weeks on vacation only in October of 2011, and then return to Norway.The children were still enrolled in their respective schools when they left for their “vacation” to Ontario. Their grandparents, relativesand friends all live there.

No part of the children’s lives has centred in Ontario prior to this trip to Canada or at any point in time. Theyhave always resided in Norway. [62] In Gilbert v. Gilbert, supra, the children had been “briefly exposed to some important institutions, relatives and friends inOntario”.

Steinberg J. found that “it would be stretching the term ‘real and substantial connection with Ontario’, beyond any truemeaning to find that the Applicant has satisfied this criterion.”[8] [63] The children in the case at bar may have had the opportunity to develop friendships and some ties in their community to thistime, largely due to the passage of time required to get a matter such as this before the courts. However, on the totality of the evidence,they do not have a real and substantial connection with Ontario.

The balance of convenience [64] Where the independent evidence that will be of greatest assistance to the court is in another jurisdiction, the balance ofconvenience favours that jurisdiction. In the case before the Court, that jurisdiction is Trondheim, Norway. Gilbert v. Gilbert (1985), (ON SC), 47 R.F.L. (2d) 199, [1985] O.J. No. 767 (U.F.C.) at para. 25(vi); Nordin v. Nordin (2001), (ON SC), 17 R.F.L. (5th) 119, [2001] O.J. No. 599 (S.C.J.) at para. 14; Vega v. Vega, (ON CJ), [1994] O.J. No.1794 (Prov.

Div.) at para. 19. [65] In my view, it would be unreasonable to expect witnesses who are essential to the case for the Applicant (as well as to thecase for the Respondent) to attend in Ontario to provide evidence on the issues of custody and access. In such cases, our courts haveheld that the balance of convenience test is not met. It would be unreasonable to expect Kristoffer, Lise, Ida and Linus’ teachers,instructors, doctors, neighbours, caregivers, friends, family friends and others with essential evidence to travel to Ontario for a custodytrial.B. (S.M.) v. H. (C.D.), [2002] O.J. No. 2517 (S.C.J. – Fam.

Ct.) at para. 13. [66] In the circumstances and for the reasons articulated, pursuant to s. 25 of the CLRA, this court declines jurisdiction in thismatter with respect to custody and access because it is more appropriate that the jurisdiction of the country of Norway be exercised overthose issues. Norway clearly is a very well developed, democratic country, with an internationally respected legislative system and anindependent and well trained judiciary which will allow the parties a full and fair hearing of the issues in dispute under the rule of law.

Conclusion [67] It is ordered pursuant to the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) asadopted pursuant to s. 46 of the Children’s Law Reform Act, R.

S O. 1990 c.C. 12 and in particular Articles 3 and 12 thereof, that thechildren Kristoffer Robin Solem, born July 31, 1997, Lise Victoria Solem, born October 12, 1998, Ida Sofie Solem born February 20,2000 and Linus Johannes Solem, born January 7, 2011 be returned to the City of Trondheim, in Norway, into the joint custody of theApplicant and Respondent as previously agreed between them in June 2010. [68] It has not been suggested to the court that the Respondent would not return to Norway with the children in the event that thiscourt should order the children be returned to that country.

If that is not the case, counsel may contact me through the office of the TrialCo-ordinator in St. Catharines for a telephone conference call or further court appearance. [69] The court was also advised that Mr. Solem was prepared to fund the purchase of pre-paid airline tickets for Ms. Solem andthe children to effect their return to Norway. If that is not the case, counsel may contact me through the office of the Trial Co-ordinatorin St.

Catharines for a telephone conference call or further court appearance. [70] It is ordered that the transfer of the children from Ontario to Norway shall occur within 30 days of the date of this order unlessotherwise ordered by this court or some other court of competent jurisdiction.

[ 71 ] It is ordered that on or before March 10, 2013, the Respondent Ms. Solem shall advise the Registrar of the Court at St.

Catharines and serve on counsel for the Applicant, a copy of the travel itinerary showing the persons who are travelling, the date and time of departure for Norway, the name of the airline carrier and the flight number, the date and time and location of arrival in Norway and any other pertinent information to permit the Applicant to meet his children at the airport upon their arrival. [ 72 ] It is ordered that if the parties are unable to agree on the date of return of the children to Norway or the other details associated with effecting compliance with this order, counsel may contact my office by telephone conference call so that the issues confronting the parties can be adjudicated summarily if necessary. [ 73 ] It is ordered that the Respondent shall, commencing February 22, 2013 report every second day before 3:00pm to the on-duty Staff Sergeant of the Niagara Regional Police Service at 1 District, 68 Church Street, St.

Catharines until such time as she and the children have all left Canada to return to Norway. It is ordered that any failure to report shall forthwith be communicated to the Trial Co- ordinator of this Court in St. Catharines by phone at 905 988 6200, extension 446. [ 74 ] It is ordered that Mr. Luigi De Liscio, counsel for Ms. Solem, Mr. De Lisio immediately effect service by fax of a copy of this order on the officer-in-charge at the duty desk of the St. Catharines Police Service at 905 688-9672 with a covering letter explaining who is to report, when Ms.

Solem is to commence reporting and how often she is to report. A copy of that letter and the confirmation of the fax transmission shall be forwarded to Mr.

Waisberg’s office by fax. [ 75 ] It is ordered that a copy of the airline tickets and if available, the flight itinerary for the children and the Respondent, be provided by the Respondent or her counsel personally or by fax to the Niagara Regional Police as soon as they are available to the Respondent. [ 76 ] It is further ordered that that a copy of the airline tickets and if available, the flight itinerary for the children and the Respondent, be provided by the Respondent or her counsel to the Trial Co-ordinator’s Office of this court located on the fourth level of 59 Church Street, St.

Catharines, Ontario L2R 7N8 by fax at 905 988-5531. [ 77 ] It is ordered that in the event that the respondent Marianne Solem does not comply with the provisions of this Endorsement, the Niagara Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police and all international and other police forces shall locate, apprehend and deliver the children of the marriage, namely: Kristoffer Robin Solem, Born July 31, 1997, Lise Victoria Solem, born October 12, 1998, Ida Sofie Solem, born February 20, 2000 and Linus Johannes Solem, born January 7, 2011, to the Applicant, namely Robert Solem. [ 78 ] The court has been advised that the Applicant is prepared to pay the costs of the airline tickets from Ontario to Norway for the Respondent and the children.

It is ordered that the Respondent shall reimburse the Applicant for the travel cost expenses incurred by the Applicant to have the children and the Respondent returned to Trondheim Norway. Costs [ 79 ] It is ordered that on or before March 10, 2013 the Applicant shall serve file a costs

summary including the particulars specified in Rule 57 of the Rules of Civil Procedure. A listing of dockets should be included with particulars of services rendered, the person providing those services, the rates charged on a substantial indemnity basis and on a partial indemnity basis. Any relevant Offers to Settle should be included. [ 80 ] The Respondent shall serve and file responding materials on or before March 25, 2013. [ 81 ] The Applicant may serve and file a brief response on or before March 30, 2013. Turnbull, J. Date: February 20, 2013