Habitual Residence – Art. 3
There was strong evidence the children were habitually resident in Austria immediately before their mother brought them to Canada. They had been living in Vienna with their father for eight months. Their mother also lived there during the majority of that period and the children spent roughly equal time with each parent. They attended school on a consistent basis.
The parties had agreed on and adhered to a shared parenting schedule. Although the mother ultimately wished to relocate to Canada with the children, the evidence indicated she and the children were not simply visiting Vienna. She had arguably submitted to the jurisdiction when she not only agreed to, but exercised rights of access pursuant to the court process underway in Vienna.
Grave Risk – Art. 13(1)(b)
The mother failed to show that both the risk and the harm faced by returning the children was substantial, based on credible evidence. She relied primarily on an assault charge laid against the father in England several years ago, which she had subsequently withdrawn. The alleged abuse was toward the mother, not the children. Moreover, other evidence contradicted her assertion of abusive behaviour.