CUSTODY AND ACCESS - Child abduction - Hague Convention - Ordinary residence

Motion by the father seeking a declaration the habitual residence of the parties’ 8-year-old child was Missouri and for an order directing the mother to return the child immediately to the father. Cross-motion by the mother for a declaration the Ontario court had jurisdiction. The parties resided together in Missouri for four years prior to their separation in 2015. A 2016 final order issued by the Missouri court granted the parties joint legal and physical custody of the child. The order stated that Missouri was the home state of the child and that the Missouri court had jurisdiction to enter orders affecting the child. In 2017, the mother moved back to Ontario and the child commenced residing primarily with the father in Missouri. The mother refused to return the child to the father after a visit in Ontario in 2020.

HELD: Motion allowed; cross-motion dismissed. The child’s habitual residence was Missouri. The mother had wrongfully retained the child. Missouri was the proper jurisdiction to address issues of custody and access. The preponderance of convenience did not favour Ontario having jurisdiction. Any unfairness to the mother, which she had not shown, would be outweighed by unfairness to the father if he was forced to litigate in Ontario. The mother was to return the child immediately to the father. The mother’s concerns regarding COVID-19 could not be used by her to unilaterally change the child’s habitual residence or the custody and access order. The child was not at great risk of physical or psychological harm if returned to the father’s care.

Rainey v. Summers, [2020] O.J. No. 4391, Ontario Superior Court of Justice, R.S. Jain J., October 13, 2020. Digest No. TLD-November232020008