The mother and father were married in the United States in 1990. Their child, a girl, was born in January 1992. The mother and father divorced in the United States in 1993. Under the divorce decree the parents had joint custody, the mother having physical care, the father access.
In 1995, on the basis of allegations of physical and sexual abuse, the father’s access was first suspended and then ordered to be supervised. The father sought to enforce his supervised access rights, but he was unsuccessful and had no access after March 1995. An investigation into the abuse allegations completed in June 1995 indicated no sexual abuse and only spanking of the child by the father.
The mother fled with the child to Canada in July 1995, using falsified US passports. The mother remarried in October 1996 and moved with her husband and the child to Nova Scotia. The mother and her second husband separated in May 2001.
In the Spring of 2001, the father located the child, who was then 9 years old. It then became known to the authorities that the mother and child were in Canada illegally, and the mother was unable to work pending resolution of her immigration status. The father applied for an order for return of the child. The mother defended the application on the basis that the child objected to being returned and that the child was now settled in her new environment.
The Supreme Court of Nova Scotia ordered the return of the child. The mother appealed to the Nova Scotia Court of Appeal.