QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 513 Date: 20051208 Docket: F.L.D. No. 272/2005 Judicial Centre: Saskatoon, Family Law Division IN THE MATTER OF AN APPLICATION UNDER THE INTERNATIONAL CHILD ABDUCTION ACT, 1996 S.S. 1996, C. I-10.11 and RENAE YAMCHUK Counsel: D. M. McBride for the petitioner D. Z. Braun for the respondent FIAT R. S. SMITH J. December 8, 2005 Introduction 1) The parties are the parents of Joshua Aaron Jones, born April 10, 2003. They were married and the family home was in Connecticut. The respondent mother, Canadian citizen, has returned to Canada and now resides in the Town of Laird, Saskatchewan. 2) The petitioner father, an American citizen, continues to reside in Connecticut and brings an application under The International Child Abduction Act, 1996, S.S. 1996, c. I-10.11 (The “Act”) for an order directing Joshua be returned to Connecticut. The petitioner invokes the protocol of the Convention on the Civil Aspects of International Child Abduction (the “Convention”) which is scheduled to the Act. Article 12 of the Convention provides, in part: Where child has been wrongfully removed or retained in terms of Article and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in his or her new environment. 3) Sometime in 1998 or early 1999 the parties commenced friendship via the Internet. Their relationship remained web-based until it was agreed they should meet and they did so in October, 2001. The respondent travelled to the petitioner’s home in North Carolina and stayed for two weeks. Thereafter, she returned to Canada but travelled again to North Carolina in December, 2001. They became engaged in February, 2002. 4) The parties carried on their cross-border relationship until in or about September, 2002, at which point the petitioner, or perhaps the petitioner in discussion with the respondent the evidence is at odds on this point resolved to join the United States Navy. The petitioner observes that the plan was good one as it would afford him career and placement with solid health care benefits. 5) The start of navy career begins with eight weeks of boot camp and eight weeks of schooling. It was agreed that the respondent would return to Canada during that period. While in Canada, the respondent phoned the petitioner and advised she was pregnant. 6) As events unfolded, the petitioner graduated from boot camp and his father paid for the respondent to travel to the United States to attend the graduation ceremony. Shortly thereafter, the parties were married on February 1, 2003. After the marriage, the petitioner still faced his navy schooling and the respondent returned to Canada to be with her family for the child’s birth. The petitioner made arrangements to journey to Canada and was present when Joshua was born on April 10, 2003. 7) Approximately one week after Joshua’s birth, the petitioner travelled to Connecticut in order to take up his duties in the United States Navy. He took with him considerable amount of the respondent’s belongings and their dog. The respondent later joined the petitioner in Connecticut in May, 2003. They secured home in the town of New London, Connecticut. The respondent stayed at home caring for Joshua and the petitioner attended to his duties in the naval military police. 8) As 2003 wore on, the parties’ relationship became strained. They were new at being couple, new at being parents and the respondent missed her family. It was agreed that the respondent should visit her family in Canada in February, 2004. round trip ticket was purchased. The plan was for the respondent to visit for approximately one month. 9) After the respondent had been in Canada for some time, the petitioner attempted to contact her by phone and soon learned that she had rented her own apartment and had no intention to return to Connecticut. 10) The respondent resisted the petitioner’s entreaty for her to come home to Connecticut. By June, 2004, the petitioner concluded that he should take legal action. He initially contacted his local Senator’s office respecting action under the Convention but was inexplicably advised that relief was unavailable to him. He then retained local counsel in Connecticut and filed for divorce on June 28, 2004. He tried proceeding through court on his own but made little progress. He eventually hired an attorney who filed an application in Connecticut for an order for custody. 11) The petitioner was keeping the respondent advised of his activities and indicated that he was seeking custody in Connecticut. The respondent replied that she would return to the United States. It is unclear from the evidence whether the respondent returned for the purpose of addressing the Connecticut custody action or to attempt reconciliation. In any event, she did return on or about November 15, 2004. Upon her arrival in the United States, the parties resolved to attempt reconciliation. The petitioner’s attorney was advised to suspend legal proceedings. 12) While in Connecticut, attempting reconciliation, the respondent signed an “Appearance Notice” in relation to the Connecticut proceedings, apparently with view to facilitating sine die adjournment. Given the circumstances under which the Appearance Notice was signed, attach no factual or legal weight to it. 13) The parties resumed living together at their home in New London. The respondent travelled to Canada with Joshua on December 6, 2004. The petitioner says she indicated she was going to Canada to gather her belongings and would be returning. The respondent does not confirm the petitioner’s understanding of the trip, although she acknowledges that he had purchased return ticket for her and Joshua. 14) Very shortly after the respondent had landed in Canada, it became clear to the petitioner that she would not be coming back voluntarily. Connecticut legal proceedings were reactivated and on February 22, 2005, an order was granted in the Connecticut Superior Court providing that the respondent was to return Joshua to the State of Connecticut. In addition, the parties were to cooperate with the Family Relations Division for mediation proceedings. 15) On March 29, 2005, the petitioner commenced the initial procedures in Connecticut with respect to the Act in Saskatchewan. In due course, documentation under the Convention was forwarded to the Central Authority in Saskatchewan. Under the Convention, typically, it is the Central Authority that takes steps to secure the prompt return of the child to their habitual residence. The petitioner found this somewhat problematic in Saskatchewan. 16) It is clear from correspondence from the Central Authority in Saskatchewan that it had concern as to whether the petitioner’s case met the threshold issue of habitual residence. Article of the Convention provides: The Convention shall apply to any child who is habitually resident in Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. 17) The Central Authority in Saskatchewan reviewed the number of days the child had spent in Canada from the time it was born until the time it received correspondence in April, 2005 and observed that the issue of habitual residency appeared to be an open question. 18) Rather than engage in lengthy debate with the Central Authority over the issue of habitual residency, the petitioner retained private counsel to bring an application under the Convention. 19) Mr. Justice McIntyre, in [S. (J.S.) v. (P.R.)], 2001 SKQB 283 (CanLII), (2001), 208 Sask. R. 243 (Q.B.), succinctly outlined the approach to be taken by the Court when faced with an application under the Convention. At para. 27 he opined: In proceedings under the Hague Convention it is incumbent upon the applicant to establish that the child was habitually resident in the requesting State immediately before any breach of custody or access rights (Article 4) and that there was wrongful removal or retention of the child as contemplated by Article 3. Once it has been determined that child has been wrongfully removed or retained the Hague Convention mandates the court to order the child's return forthwith (Article 12) unless the case fits into one of the exceptions set forth in Articles 12, 13 or 20. In this regard the onus is on the parent who would resist the return order. The exceptions are summarized in Thomson v. Thomson, [1994 CanLII 26 (SCC), [1994] S.C.R. 551], at pp. 594-5 as follows: 1. More than year has elapsed between the removal and the commencement of judicial proceedings and it can be demonstrated that the child is now settled into his new environment: Article 12; 2. The person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention: Article 13(a); 3. The person, institution or other body having the care of the person of the child had acquiesced in the removal or retention: Article 13(a); 4. There is grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation: Article 13(b); 5. The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take into account its views: Article 13; 6. The return of the child would "not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms": Article 20. Habitual residence 20) The threshold issue is the determination of the habitual residence of Joshua. Article is quite clear in stating that the child must have been habitual resident in Contracting State immediately prior to being wrongfully removed or retained. The term “habitual residence” is not defined in the Convention. In Chan v. Chow, 2001 BCCA 276 (CanLII), (2001), 15 R.F.L. (5th) 274 (B.C. C.A.), the British Columbia Court of Appeal has approved of definition of “habitually resident” applicable to the Convention. The Court stated at para. 31: For the purposes of the Convention, the best and most useful definition of "habitually resident" can be found in Re J. (A Minor) (Abduction: Custody Rights), [1990] A.C. 562 at 578 (H.L.) where Lord Brandon stated: The first point is that the expression "habitually resident" as used in Article of the Convention is nowhere defined. It follows, think, that the expression is not to be treated as term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words it contains. The second point is that the question whether person is or is not habitually resident in specified country is question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is significant difference between person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. person may cease to be habitually resident in country in single day if he or she leaves it with settled intention not to return to it but to take up long-term residence in country instead. Such person cannot, however, become habitually resident in country in single day. An appreciable period of time and settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country but not yet become habitually resident in country B. The fourth point is that, where child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers. 21) In short, and in summary: (i) Habitual residence is question of fact to be decided by reference to all of the circumstances of the case; (ii) Habitual residence is established by residing in place for an appreciable period of time with “settled intention” to reside there; (iii) child’s habitual residence is inextricably linked to the residence of his or her custodians. 22) At para. 33 of Chan v. Chow, the British Columbia Court of Appeal went on to say: The leading authority on the meaning of having "settled intention or purpose", is R. v. Barnet London Borough Council, [1983] A.C. 309 (H.L.) where Lord Scarman stated at p. 344: And there must be degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed, his purpose, while settled, may be for limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has sufficient degree of continuity to be properly described as settled. 23) In the recent decision of Korutowska-Wooff v. Wooff, (2004), 2004 CanLII 5548 (ON CA), R.F.L. (6th) 104 (Ont. C.A.), the Ontario Court of Appeal provided useful summary of the definition of “habitually resident”, adopting the analysis from Chan: The term "habitually resident" is not defined in the Convention. However, the English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of Re J. (A Minor) (Abduction: Custody Rights), [1990] A.C. 562 (H.L.), and R. v. Barnet London Borough Council, [1983] A.C. 309 (H.L.). See Chan v. Chow (2001), 2001 BCCA 276 (CanLII), 199 D.L.R. (4th) 478 at paras. 30-34 (B.C.C.A.); Kinnersley-Turner v. Kinnersley-Turner (1996), 1996 CanLII 1100 (ON CA), 94 O.A.C. 376 at paras. 19-20. The principles that emerge are: the question of habitual residence is question of fact to be decided based on all of the circumstances; the habitual residence is the place where the person resides for an appreciable period of time with "settled intention"; "settled intention" or "purpose" is an intent to stay in place whether temporarily or permanently for particular purpose, such as employment, family, etc.; child's habitual residence is tied to that of the child's custodian(s). 24) Typically, each province has legislation which defines or is referable to the concept of habitually resident. This is so in Saskatchewan under The Children’s Law Act, 1997, S.S. 1997, c. C-8.2. Section 15 of The Children’s Law Act, 1997 provides: 15(2) child is habitually resident in the place where he or she resided: (a) with both parents; (b) where the parents are living separate and apart, with one parent under custody agreement or order or with the consent, implied consent or acquiescence of the other; or (c) with person other than parent on permanent basis for significant period of time; whichever last occurred. (3) Where the child’s habitual residence cannot be determined pursuant to clause (2)(a), (b) or (c), the child is to be considered as habitually resident in the jurisdiction with which the child has the closest connection. (4) The removal or withholding of child without the consent of the person entitled to custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. 25) The case law is at odds as to whether reference should be had to the domestic statute when addressing the issue of habitual residency under the Convention. (See: Medhurst v. Markle (1995), 1995 CanLII 9273 (ON SC), 17 R.F.L. (4th) 428 (Ont. Gen. Div.) and Chan v. Chow, supra.) Without addressing the debate at length, would observe that s. of the Act provides that if there is conflict between the Act (and therefore the Convention) and any other provincial legislation, then the Act prevails. Further, in this case, the esoteric debate is moot as conclude the statutory definition of habitual residence under The Children’s Law Act, 1997 is not in conflict with the case law developed under the Convention. 26) Joshua was born in Canada on April 10, 2003. He and his mother joined his father in Connecticut one month later in May, 2003. In February, 2004, Joshua and the respondent returned to Canada for planned one-month visit. It is absolutely clear that the petitioner did not consent to the prolonged absence of the respondent and Joshua. Later in the year, in or about November 15, 2004, Joshua and the respondent returned to Connecticut and resumed living with the petitioner. As noted, it is an open question as to whether the return was to address the pending custody application or to attempt reconciliation. In any event, reconciliation was attempted. Joshua and the respondent then left Connecticut on December 6, 2004 and have not returned. The December, 2004 leaving, from the petitioner’s perspective, was for one month and as evidence of that he purchased round trip ticket for both the respondent and Joshua. 27) Counsel for the respondent invites the Court to tally the days Joshua has lived in Connecticut and compare them to the days he has lived in Saskatchewan and to determine habitual residence on that basis. With respect, do not believe that to be the proper approach. 28) For the purposes of an analysis under the Convention, the Court must fix some point in time for the purpose of determining the issue of habitual residence. conclude that crystalizing moment was in March, 2004 when the respondent did not return from her trip to Canada. 29) There is no question the petitioner had agreed that the respondent and Joshua could return to Canada to visit family for one month. When they did not return, the consent was implicitly withdrawn and at that point, for the purposes of the Convention, circumstances should be examined to determine habitual residence. 30) For the determination of habitual residence, the focus should be on the family’s circumstances at the time the petitioner’s consent to Joshua’s removal was withdrawn. That point is in late March, 2004. At that juncture, the family had secured home in New London, Connecticut and adopted traditional familial roles. The respondent was at home raising Joshua and the petitioner was attending to his duties in the navy. Through their conduct, the parties had evidenced a settled intention to make their home in Connecticut. 31) The respondent chose to unilaterally remove Joshua from that home sometime after returning to Canada in February, 2004. do not regard the brief resumption of cohabitation in November and early December, 2004 as impacting on the issue of determining habitual residence, nor does it go to the issue of settled intention. Compliance with Article of the Convention 32) Article of the Convention provides as follows: Any person, institution or other body claiming that child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for Assistance in securing the return of the child. The application shall contain: (a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child; (b) where available, the date of birth of the child; (c) the grounds on which the applicant’s claim for return of the child is based; (d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by: (e) an authenticated copy of any relevant decision or agreement; (f) certificate or an affidavit emanating from Central Authority, or other competent authority of the State of the child’s habitual residence, or from qualified person, concerning the relevant law of that State; (g) any other relevant document. 33) The petitioner provided an affidavit of Mark W. Schoepfer, an attorney in the State of Connecticut, wherein he swears as to the laws of the State of Connecticut. The essence of Mr. Schoepfer’s evidence, which was not contradicted or attacked, was: (i) Under the laws of the State of Connecticut, in the absence of custody order, both parents have equal rights to their child; and (ii) Under the Connecticut general statutes, the father and mother of every minor child are joint guardians of the person of minor, and the powers, rights and duties of the father in regard to the child shall be equal. 34) Connecticut’s legislation is not dissimilar to Saskatchewan. It grants parents joint rights to child and therefore at the time the respondent wrongfully retained Joshua in Canada, by not returning in late March, 2004, she violated the petitioner’s rights to Joshua under Connecticut law. 35) Accordingly, the petitioner has demonstrated he has right to custody, and therefore meets the obligation under Article of the Convention. As have concluded Joshua’s habitual residence is and was Connecticut, the relief under Article 12 of the Convention is triggered. The debate before me focussed on the issue of habitual residence. There is no suggestion that the exceptions under the Convention under Articles 12, 13 or 20 are applicable. “Chasing orders” 36) As previously noted, the petitioner had obtained an interim order on February 22, 2005 directing Joshua to be returned to Connecticut. In addition to his application in Saskatchewan under the Act, he pursued his case in the Superior Court in Connecticut and on October 19, 2005 obtained an order which, inter alia, dissolved the marriage, ordered the respondent to return Joshua to the State of Connecticut and granted the petitioner sole custody. 37) The Superior Court orders were proffered in argument by the petitioner’s lawyer as evidencing his timeliness and keen interest in maintaining his relationship with Joshua and as buttressing his argument under the Convention. 38) Orders for custody in the original jurisdiction are typically referred to as “chasing orders”. The chasing orders are, as in this case, presented as evidence of the petitioner’s custodial right to the child and in support of the application under the Convention. 39) The solicitor for the respondent argues that the chasing order, particularly now that it has finalized sole custody in the name of the petitioner, should prompt this Court to make any order of return under the Convention conditional. 40) The respondent’s position is that if she must return to Connecticut, then the status quo prior to leaving that State should be restored, i.e. each parent having equal rights to the child. 41) The respondent posits to the Court that any order directing her and Joshua to return should be conditional upon the petitioner varying the order he obtained on October 19, 2005, vacating the award of sole custody to the petitioner and replacing it with something in the nature of joint custody. In that way the respondent could engage the debate in Connecticut on an even playing field. 42) Chasing orders have been the subject of comment in Canadian jurisprudence. In Thomson v. Thomson, supra, LaForest J. opined on the options available to the Court when the return of the child is warranted under the Convention but “chasing order” exists. As discussed earlier, the "chasing order" issued by the Scottish court complicates matters in the case at bar, for it makes one objective of the Convention, return to the status quo as it existed before the wrongful removal, impossible to achieve without taking additional action. The Convention does not provide specifically for remedial flexibility because it is based on the primary assumption that the wrongful removal of child necessarily has harmful effects (see the preamble; see also Anton, supra, at p. 543). In interpreting the Convention, courts have recognized that frequently an unqualified return order can be detrimental to the short term interests of the child in that it wrenches the child from its de facto primary caregiver. As Helper J.A. put it, at p. 215, "children must not be made to suffer twice over as result of their parents' wrongdoing". The younger the child, the greater the need for the courts' concern. This is especially so in fact patterns like the present to which the travaux préparatoires refer to as "in effect, the reverse of the usual child abduction case" (Dyer Report, Actes et documents, supra, at p. 40). Given the preamble's statement that "the interests of children are of paramount importance", courts of other jurisdictions have deemed themselves entitled to require undertakings of the requesting party provided that such undertakings are made within the spirit of the Convention: see Re L., supra; C. v. C., supra; P. v. P. (Minors) (Child Abduction), [1992] F.L.R. 155 (Eng. H.C. (Fam. Div.)); and Re A. (A Minor) (Abduction), supra. Through the use of undertakings, the requirement in Article 12 of the Convention that "the authority concerned shall order the return of the child forthwith" can be complied with, the wrongful actions of the removing party are not condoned, the long-term best interests of the child are left for determination by the court of the child's habitual residence, and any short-term harm to the child is ameliorated. 43) In Thomson v. Thomson, the concern over chasing orders, at the Supreme Court level, was rendered academic by way of undertakings given by the father not to take physical custody of the child upon his return to Scotland until Court in that jurisdiction permitted. 44) Similarly, in Mahler v. Mahler (1999), 1999 CanLII 14255 (MB QB), R.F.L. (5th) 428 (Man. Q.B.), Justice Little of the Manitoba Queen’s Bench addressed the debate. Mahler involved situation where children were moved from New York to Manitoba. The spouses had previously entered an interspousal agreement which provided for joint custody with the primary residence to be with the mother. The mother removed the children from New York State without the husband’s consent and returned to Manitoba. The husband obtained an ex parte order which granted him sole custody. Little J. observed at para. 37: Courts frequently are faced with the fact that change in primary caregiving might occur as result of "chasing order" issued in the former jurisdiction. Psychological harm to children may result by reason of the severance of that primary caregiver relationship. Yet in all cases to which my attention was drawn by counsel, the children have been ordered returned. 45) Little J. concluded that it was appropriate to impose some sort of condition on the petitioner and provided at para. 45: 45(e)(1) Mr. Mahler will apply to the New York Family Court to vary the existing sole temporary custody order to terms which reflect the status quo, and pending full hearing there. In this case, that is the wording of the separation agreement i.e. "joint legal custody to the parties with physical custody to the mother and liberal visitation to be agreed upon". 46) The guidance from the aforementioned judgments is tempered by the observations of Madam Justice L’Heureux-Dube who opined in V.W. v. D.S., 1996 CanLII 192 (SCC), [1996] S.C.R. 108 at para. 36: The automatic return procedure implemented by the Act is ultimately intended to deter the abduction of children by depriving fugitive parents of any possibility of having their custody of the children recognized in the country of refuge and thereby legitimizing the situation for which they are responsible. To that end, the Act favours the restoration of the status quo as soon as possible after the removal of the child by enabling one party to force the other to submit to the jurisdiction of the court of the child's habitual place of residence for the purpose of arguing the merits of any custody issue. The Act, like the Convention, presumes that the interests of children who have been wrongfully removed are ordinarily better served by immediately repatriating them to their original jurisdiction, where the merits of custody should have been determined before their removal. Once that determination has been made, the Convention and the Act give full effect thereto by protecting custody rights through the mandatory return process. 47) In similar vein, McIntyre J. observed at para. 56 in [S.(J.S.) v. S. (P.R.)], supra: Simply put, the Hague Convention presumes that the state in which the child was habitually resident ought to determine custody issues. parent is not permitted to try and gain an advantage by virtue of removing child from that jurisdiction. It is only in the narrow circumstances contemplated in Articles 12, 13 and 20 of the Hague Convention that the presumption of return may be displaced. 48) In my view, the conditional return order proposed by the respondent is inappropriate. Having determined that an order for return is warranted under the Convention, it does not lie with a Saskatchewan Court to impose a revised starting point for the process of determining custody in Connecticut. This Court’s role concludes upon the determination the petitioner has made out a case for an order for return. 49) This is not situation where the Saskatchewan Court has any concern that the judicial system in the state of habitual residence will not operate fairly. have no hesitation in extending to the Connecticut Superior Court full faith and credit that they will address the issue of custody of Joshua with the best interests of the child as its primary focus. 50) Given the time of year, the child’s tender years, and Ms. Yamchuk’s limited resources, will allow for modest period of time for the return to be accomplished. 51) Therefore, I direct the respondent, Renae Yamchuk, previously known as Renae Jones, to return the child, Joshua Jones, born April 10, 2003, to the State of Connecticut, United States of America. Such return is to be accomplished by January 8, 2006. J. R. S. Smith
FIAT: The parties are the parents of a son born April 10, 2003. They are married and the family home is in Connecticut. The respondent mother is a Canadian citizen and has returned to Canada and now resides in Laird, Saskatchewan. The petitioner is an American citizen and continues to reside in Connecticut and brings an application under The International Child Abduction Act for an order directing the child to be returned to Connecticut. HELD: The respondent is directed to return the child to the State of Connecticut by January 8, 2006.  1) The child was born in Canada. He and his mother joined his father in Connecticut one month later in May 2003. In February 2004 the child and his mother returned to Canada for a planned one-month visit. It is clear that the petitioner did not consent to the prolonged absence of the respondent and the child. In about November 2004 the respondent and the child returned to Connecticut and resumed living with the petitioner. Reconciliation was attempted. The respondent and child left in December 2004 and have not returned. The crystallizing moment was in March 2004 when the respondent did not return from her trip to Canada. For the purposes of the Convention, circumstances should be examined to determine habitual residence. At this point the parties had adopted traditional roles. The respondent was at home raising the child and the petitioner was attending his duties in the navy. Through their conduct the parties had evidenced a settled intention to make their home in Connecticut. The respondent chose to unilaterally remove the child from that home. 2) The petitioner had obtained an interim order in February 2005 directing the child to be returned to Connecticut. He also pursued his case in the Superior Court in Connecticut and on October 2005 obtained an order dissolving the marriage, directing the respondent to return the child to Connecticut and granted the petitioner sole custody. The respondent now asks that any order directing her and the child to return should be conditional on the petitioner varying the order he obtained in October 2005, vacating the award of sole custody to the petitioner and replacing it with something in the nature of joint custody. The conditional return order proposed by the respondent is inappropriate. Having determined that an order for return is warranted under the Convention, it does not lie with a Saskatchewan Court to impose a revised starting point for the process of determining custody in Connecticut. This Court's role concludes upon the determination the petitioner has made out a case for an order for return.