The two children, boys (J & G), were born in Canada in 1989 and 1991 to German parents who had been landed immigrants in Canada since 1987. In November 1991 the parents separated and the mother took G to Germany.
When the mother returned to Canada in April 1992 the parties arrived at a written agreement in the presence of witnesses that the mother would take J back to Germany. It was a further provision of the agreement that the father would have the care of J for 40% of the time and the care of the younger son G for 20% of the time. The agreement provided that the father would assume the care of J on the father’s return to Germany.
However, the father did not return to Germany and had no time with either son. He claimed to have entered into the agreement under emotional duress.
The husband petitioned for a declaration that pursuant to Article 12 of the Hague Convention and s.34 of the Family Relations Act, J was being wrongfully retained by the mother in Germany and for an order that the child be returned to Canada.