The child, a girl, was 2 months old at the date of the alleged wrongful removal. She had lived in Germany since her birth, 16 December 1994. The parents were married and had joint rights of custody. In February 1995 the mother returned to Canada, her State of origin, with the child.
In May 1995 the father applied to the Provincial Division for an order for the return of the child to Germany. On 11 May 1995 the trial judge gave oral reasons in court, namely that at the material time the child was habitually resident in Germany, that the father had custody rights, and that there had been a wrongful removal and retention of the child in Ontario. He then considered whether the Article 13(1)(b) exception had been made out, but he reserved his decision.
On 15 May 1995 the judge gave further oral reasons in court. He determined that the return application was an abuse of process under Article 8 and dismissed it.
The father appealed.
The mother cross appealed against the finding that the child was habitually resident in Germany on the relevant date.
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