The mother and father, Canadian citizens, lived together in Canada for three years. They had one child, a boy, who was six years old at the time of the Court’s decision.
The mother and father separated in 1998. They entered into an agreement for joint custody with primary residence to be with the mother. Under the agreement, the mother was permitted to relocate with the child from Canada to the United States. The mother and the child moved to the United States where they lived with the mother’s fianc? for three and a half years.
During the summer of 2002, the mother’s relationship with her fianc? ended. The mother and father agreed that the child would live with his father until the mother was resettled. The mother resettled in the United States in October 2002 and then asked the father for the return of the child. The father refused.
In December 2002, the father applied in Canada for custody of the child, and the mother applied for a return order. The judge at first instance ruled that the retention of the child by the father was wrongful and that the mother had not acquiesced in the retention.
However, the judge ruled that returning the child to the United States would place the child in an intolerable situation within the meaning of Article 13(1)(b) and would be contrary to public policy because of the mother’s uncertain immigration status in the United States. The mother appealed to the Court of Appeal for Ontario.
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