K.G. v. C.L.G. [Canada 2002] [2002] S.J. No. 326; 2002 SKQB 177 13 International Abduction [USA 2002] =========================================================== IN THE MATTER OF enforcing a custody order of an extra-provincial tribunal pursuant to the Children's Law Act, 1997 AND IN THE MATTER OF the International Child Abduction Act, 1996 Between K.G., applicant and C.L.G., respondent [2002] S.J. No. 326 2002 SKQB 177 Q.B.F.L.D. No. 87 of 2002 J.C.R. Saskatchewan Court of Queen's Bench (Family Law Division) Judicial Centre of Regina McIntyre J. April 29, 2002. (40 paras.) Counsel: Gerald B. Heinrichs, for the applicant K.G. Helen G. Semaganis, for the respondent C.L.G. 001 McINTYRE J.:- The applicant seeks the following relief: 1. An order pursuant to Part III of The Children's Law Act, 1998 [sic] registering and enforcing a custody order of a[n] extra-provincial tribunal regarding custody of the following children: E.S.M. born March 15, 1996 J.E.G. born December 11, 1998; 2. Insofar as necessary, an order pursuant to The International Child Abduction Act, 1996, directing an appropriate remedy in favour of the Applicant as against the Respondent in regard to the wrongful taking and abduction of the said children from the state of Montana, USA on or about February 6, 2002; 3. Such order as may be necessary to ensure lawful, prompt, and peaceful return of the children to their father and their home in the State of Montana including but not limited to a direction and declaration to police and law enforcement officials that they assist the custodial father; 4. Costs including solicitor-client and extraordinary costs. 002 The applicant is a member of the Chippewa Cree Tribe resident on the Rocky Boy's Indian Reservation, Montana, United States of America ("Rocky Boy's"). The respondent is a member of the Gordon's First Nation, in the Province of Saskatchewan, and a registered status Indian pursuant to s. 6 of the Indian Act, R.S.C. 1985, c. I-5. The parties were married September 9, 1997 on Rocky Boy's and resided there together until January, 2001. They have two children, E.S.M. and J.E.G. The respondent acknowledges that prior to February 7, 2002, she and their children were habitually resident on Rocky Boy's, Montana. The children are members of the Chippewa Cree Tribe. They are also registered status Indians under the Indian Act. 003 The parties separated in January, 2001. The respondent left the marital home and took up temporary residence in Havre, Montana. The respondent says she was told she could not stay in the marital home on the reservation on Rocky Boy's because she was not a tribal member. The boys remained with their father on Rocky Boy's. On February 1, 2001, the applicant filed a petition for divorce in the Tribal Court of the Chippewa Cree Tribe, Rocky Boy's Reservation, Montana (the "Tribal Court"). On that day he obtained what would appear to be an ex parte order granting him temporary custody of the boys. A hearing was set for February 9, 2001. It appears the hearing was ultimately scheduled for February 16. The respondent says she understood this was to be an application for an interim order. The hearing appears to have lasted five minutes. The applicant was late, arriving at the conclusion of the hearing and says she was not allowed to address the Tribal Court. A March 13, 2001 order of the Tribal Court issued as a result of the February 16 hearing indicates that the applicant was granted full custody of the boys "by default". 004 The respondent says a hearing with respect to the petition for divorce was held March 23, 2001. She says she understood that final custody of the children was to be determined by the Tribal Court at that time as well as matrimonial property issues. She says she attended the hearing prepared to make her case for final custody. It is said that an individual representing the applicant objected to any discussion of custody on the basis that the matter had already been dealt with. The respondent says the court did not engage in any discussion regarding custody and she was not given an opportunity to make her case for custody of her children. As a result of the March 23 hearing the Tribal Court issued a divorce decree April 9, 2001 in which it is said, inter alia, that the children will be in the petitioner's [K.G.'s] care. 005 The respondent resided in Havre, Montana from January to July, 2001 and the boys lived on Rocky Boy's with their father. The respondent saw them on a regular basis. In July, 2001, the parties resumed cohabitation on Rocky Boy's. There was filed with this Court a certified copy of an order of the Tribal Court of September 4, 2001. On the material before me it is not clear what the context is or why an order was made at this time given that the parties had resumed cohabitation. The order is somewhat confusing in that at one point it says temporary custody of the boys is granted to K.G. and later on it says full custody is granted to K.G. 006 The respondent says that on January 19, 2002 she was unable to continue in the relationship and left the marital home on Rocky Boy's and returned to Saskatchewan. The boys remained with their father. She says she intended to contest custody and on or about January 21, 2002, spoke to a clerk of the Tribal Court and was advised that because they had been living together common law there was no court order for custody and that she could petition for custody of the children. She says she then made arrangements to return to Rocky Boy's to take custody of the children and file a petition. On February 6, 2002, she travelled to Rocky Boy's and filed a petition for custody of her children. She took custody of the children and returned to Gordon's First Nation. She said she had every intention of returning to Rocky Boy's for the hearing with respect to her petition for custody. She says that since returning to Saskatchewan she has been threatened with criminal sanctions if she did not return the children and has advised the Tribal Court that she was no longer submitting to their jurisdiction regarding the custody of their children. She has filed a petition in Saskatchewan. 007 The applicant says that he was contacted by the respondent February 5, 2002 and she wanted to make arrangements to see the boys. He says arrangements were made for her to see the boys the next day and that she was to return them by 9:00 p.m. The respondent picked up J.E.G. from the applicant's mother's home about 11:30 a.m. She apparently took E.S.M. out of school at noon and then travelled to Saskatchewan with the boys. 008 The Tribal Court held a hearing February 22, 2002, in respect of the respondent's petition for custody. The respondent was not present nor represented. The court order indicates that since there was a divorce decree of April 9, 2001, her petition would be treated as a request for modification of the divorce decree and March 4, 2002 was set as a time for that hearing. An order of the Tribal Court of March 6, 2002, indicates that the petitioner/mother did not attend the hearing of March 4, 2002 and her petition was dismissed. 009 On February 8, 2002, the Tribal Court is said to have sent a letter to the Punnichy Reserve and Gordon's Reserve in Saskatchewan indicating there were potential charges of kidnapping/custodial interference, being a violation of Title IV, c. 4.3 of the Chippewa Cree Tribe Law and Order Code being filed against the respondent. It said the respondent committed the offence by secretly removing two minor children from the Rocky Boy's Indian Reservation without the consent of the legal custodian, K.G. On February 8, 2002, the Tribal Court issued a warrant to apprehend the respondent on the basis of a complaint filed with the Court, charging the respondent with kidnapping. 010 The Children's Law Act, 1997, S.S. 1997, c. C-8.2 provides, inter alia: 14(1) In this Part and Part IV, "extra-provincial tribunal" means a court or tribunal established in a jurisdiction outside Saskatchewan with authority under the laws of that jurisdiction to make an order granting custody of or access to a child to any person. (2) In sections 17 to 20, "custody order" means an order, or that part of an order, of an extra-provincial tribunal that grants custody of a child to any person and includes provisions, if any, granting another person a right of access or visitation to a child at specific times or on specific dates. 15(1) For the purposes of making a custody or access order or for the purposes of Part IV, a court has jurisdiction where: (a) the child is habitually resident in Saskatchewan at the commencement of the application for the order; (b) although the child is not habitually resident in Saskatchewan, the court is satisfied that: (i) the child is physically present in Saskatchewan at the commencement of the application for the order; (ii) substantial evidence concerning the best interests of the child is available in Saskatchewan; (iii) no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident; (iv) no application pursuant to section 17 is pending before the court or may be made within a reasonable time; (v) no extra-provincial order with respect to custody of or access to the child has been recognized by a court in Saskatchewan; (vi) the child has a real and substantial connection with Saskatchewan; and (vii) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Saskatchewan; or (c) the parties have consented to the court having jurisdiction. (2) a child is habitually resident in the place where he or she resided; (a) with both parties; (b) where the parents are living separate and apart, with one parent under a custody agreement or order or with the consent, implied consent or acquiescence of the other; or (c) with a person other than a parent on a permanent basis for a 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 a 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. ... 17(1) Subject to subsection (2), on an application, a court: (a) shall enforce a custody order as if the custody order had been made by the court; and (b) may make any orders that it considers necessary to give effect to a custody order as if the custody order had been made by the court. (2) The court may refuse to enforce the custody order and may make any other order for the custody of or access to the child that it considers necessary if the child is physically present in Saskatchewan and the court: (a) is satisfied that the person entitled to the custody of the child pursuant to the custody order: (i) was not actually exercising the rights under the custody order at the time of the removal or retention of the child; or (ii) had consented to or subsequently acquiesced in the removal or retention; (b) is satisfied, on the balance of probabilities, that the child would suffer serious harm if the child: (i) remains in the custody of or subject to access by the person entitled to custody or access pursuant to the custody order; (ii) is returned to the custody of the person entitled to custody pursuant to the custody order; or (iii) is removed from Saskatchewan; or (c) is satisfied that the extra-provincial tribunal that made the custody order did not, at the time of making the order, have jurisdiction to do so in accordance with section 15. 18 Where, on an application pursuant to section 17, the court orders the return of the child, it may: (a) make any interim orders with respect to custody or access in the best interests of the child to ensure the child's return to the person entitled to custody; and (b) make an order described in clause (a) conditional on prompt commencement of action in the jurisdiction of the habitual residence and attach any other conditions to the order the court considers appropriate, including conditions relating to payment of costs for reasonable travel and other expenses related to the proceedings. 19(1) A person making an application pursuant to section 17 shall file with the application a copy of the custody order to which the application relates, certified as a true copy by: (a) a judge or other presiding officer of the extra-provincial tribunal; or (b) the clerk or other official charged with the keeping of records and orders of the extra-provincial tribunal. (2) No proof is required of the signature or appointment of a judge, presiding officer, clerk or other official with respect to any certificate produced as evidence pursuant to this section. (3) For the purpose of an application pursuant to section 17, a court may take notice, without requiring formal proof, of: (a) the law of a jurisdiction outside Saskatchewan; and (b) a decision of an extra-provincial tribunal. ... 21 Where there is a conflict between this Act and The International Child Abduction Act, 1996, the latter act prevails. ... 24(1) A court, by order, may direct a sheriff, peace officer or other person that it considers appropriate to locate, apprehend and deliver a child to a person specified by the court for the purpose of giving effect to the rights of the applicant to custody or access where the court is satisfied on application that there are reasonable grounds for believing that a person: (a) is unlawfully withholding the child from a person entitled to custody of or access to the child pursuant to an order or agreement; (b) who is prohibited by order or agreement from removing the child from Saskatchewan intends to remove the child or have the child removed from Saskatchewan; or (c) who is entitled to access to the child pursuant to an order or agreement intends to remove the child or to have the child removed from Saskatchewan and that the child is not likely to return. (2) For the purpose of enforcing an order made pursuant to subsection (1), the court may authorize the sheriff, peace officer or other person to enter and search any place where the sheriff, peace officer or other person has treasonable grounds for believing that the child may be. (3) An application pursuant to subsection (1) may be made ex parte where the court is satisfied that it is necessary that action be taken without delay. (4) The sheriff, peace officer or other person directed to act by an order made pursuant to subsection (1) shall do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the order. (5) Neither the minister responsible for the administration of The Child and Family Services Act nor any employee of the minister's department who is acting in the course of his or her responsibilities pursuant to that Act are to be named in an order made pursuant to this section without the person's prior written consent. 011 The International Child Abduction Act, 1996, S.S. 1996, c. I-10.11 provides for the coming into force in Saskatchewan of the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") as of November 1, 1986, and the provisions of the Hague Convention are law in Saskatchewan. The Hague Convention provides, inter alia: Article 1 The objects of the present Convention are: a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 2 Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available. Article 3 The removal or the retention of a child is to be considered wrongful where: a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a), may arise in particular by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under the law of that State. Article 4 The Convention shall apply to any child who was habitually resident in a 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. Article 5 For the purposes of this Convention: a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence. Article 6 A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. Federal States, States with more than one system of law or States having autonomous territorial organizations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State. ... Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of the children. ... Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a 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. ... Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes the child's return establishes that: a) 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, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a 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 14 In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, or of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ... Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. ... Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ... Article 29 This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or of access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention. 012 The applicant argues he has legal custody of the boys pursuant to the divorce decree of April 9, 2001, and that order ought to be enforced pursuant to s. 17 of The Children's Law Act, 1997. In the alternative he says the boys were wrongfully removed from the State of Montana where they had been habitually resident and a return order should be made under the Hague Convention. 013 The respondent takes the position there is no order of the Tribal Court to be enforced as the parties had, in fact, resumed cohabitation. She also questions whether a Tribal Court order is enforceable outside of the United States of America. It is argued that the order may not be enforceable as it may not have been made in substantial conformity with the jurisdictional standards of the custody provisions of the Montana Code Annotated (2001). Insofar as the Hague Convention is concerned the respondent says that if Rocky Boy's is recognized as a separate sovereign entity in the United States of America, there is no evidence that it is a contracting state and hence the Hague Convention is inapplicable to these proceedings. 014 The respondent also says it is important for the Court to consider the circumstance she and the children will be placed in if the children are returned to Rocky Boy's. It is argued the children will be taken from their mother and their new sibling (the respondent just gave birth to another child in Saskatchewan) and they will have limited access to their mother given the distance between Rocky Boy's and the mother's residence in Saskatchewan. It is further said that, with the exception of a six month period, the respondent has been the primary caregiver to these children and is therefore the psychological parent. It is said this factor has allowed the children to make a change in residence with little negative impact and that severing the relationship between the respondent mother and her young children will expose the children to psychological harm or otherwise place them in an intolerable situation. It is also argued the respondent may not receive a fair custody hearing if she is required to return to the Tribal Court's limited jurisdiction. It is said that for these reasons the Court ought not to order the return of the children relying upon Article 13 of the Hague Convention and s. 17(2)(b)(iii) of The Children's Law Act, 1997. 015 Subsequent to hearing argument on this matter the Court asked counsel to address, inter alia, the authority and jurisdiction of the Tribal Court and whether a custody order of the Tribal Court is recognized and/or enforceable in the State of Montana. In response the applicant filed an affidavit of Professor Maylinn Smith, Professor of Law at the University of Montana. Professor Smith attests: 4. I would advise this Honourable Court that based on my legal knowledge and experience I can state that the Tribal Courts in the United States of America (including the Tribal Court of the Chippewa Cree Tribe) have jurisdiction to determine numerous civil and criminal legal issues on their reservations the same way State and Federal Courts have their own sphere of jurisdiction. The authority of Tribal Courts to determine such matters is, in my opinion, well-settled law in the United States. Their jurisdiction is affirmed by the United States Supreme Court in several leading cases including Iowa Mutual Insurance Company v. LaPlante, 480 U.S. 9 (1987) and National Farmer's Union Insurance Co. v. Crow Tribe, 471 U.S. 845 (1985). Child custody of Indian children on the reservation is squarely within the jurisdiction of Tribal Courts. 5. Regarding the Trial Court of the Chippewa Cree Tribe, their authority and jurisdiction over band members or non-members, on or off the reserve is largely governed by Title 1, Chapter 2, (2.2), (2.3) of the Chippewa Cree Tribal Law and Order Code of 1987 a copy of which is attached hereto as exhibit "A". Extract from Exhibit "A" Chapter 2. JURISDICTION ... 2.2 Civil Subject Matter Jurisdiction. Jurisdiction of the Court shall extend to all civil actions arising in whole or in part within the exterior boundaries of the reservation or on any other land or property owned or controlled by the Tribe or adjacent, dependent Indian communities. 2.3 Personal Jurisdiction. ... (2) The Court's civil jurisdiction shall extend to any person within the exterior boundaries of the Rocky Boy's Reservation, and to persons who are parties in causes arising out of contacts with the reservation in matters in which the Court has subject matter jurisdiction. 6. Tribal Court orders and judgments are routinely recognized and enforced by both State and Federal Courts in Montana based on the principle of comity. A custody order of a tribal court in Montana is recognized under the comity principle in a U.S. Federal Court. A custody order of a Tribal Court can be recognized in Montana District Courts as a foreign judgement [sic] and thereupon has full legal effect throughout the state. Some states, however, recognize Tribal Court judgments with full faith and credit as if they came from their own superior court. Oklahoma, South Dakota and Wyoming are such states. 016 The respondent also filed the affidavit of Daniel Belcourt, a member of the Bar of the State of Montana and a Tribal attorney to the Chippewa Cree Tribe. He attests: 3. The children subject to this application (E.S.M. and J.E.G.) are members of the Chippewa Cree Tribe. 4. Based on my legal knowledge and information I can affirm that the United States of America is a signatory and contracting state to the Convention on the Civil Aspects of International Child Abduction (Hague Convention #28). Both the State of Montana and the Chippewa Cree Tribe are within and part of the United States of America. The State of Montana and the Chippewa Cree Tribe are within and part of the contracting state under the said Convention. 5. In the United States any court relief or remedy under this Convention can be sought in either State or Federal Courts. The two courts have concurrent jurisdiction. A judgment or order of a U.S. Federal Court is enforceable and of full force and effect on a Reservation including the Chippewa Cree Tribe. A Montana State Court order or judgment can be registered in the Tribal Court as a foreign judgment upon the proper application and thereupon is enforceable on the Reservation. 017 Underlying both the Hague Convention and the provisions of The Children's Law Act, 1997 dealing with the enforcement of extra-provincial custody orders is the notion that the jurisdiction in which a child was habitually resident ought to determine custody issues. A parent is not permitted to try and gain an advantage by virtue of removing a child from that jurisdiction. Both the Hague Convention and The Children's Law Act, 1997 recognize limited circumstances in which it would not be appropriate to return a child to that jurisdiction. Section 19 of The Children's Law Act, 1997 and Article 14 of the Hague Convention make provision for this Court to take judicial notice of the laws of the other jurisdiction without requiring proof of that law. 018 Absent the question of being members of the Chippewa Cree Tribe, the jurisdiction to deal with custody of children habitually resident in Montana is vested in the Montana District Court. 019 The constitution and bylaws of the Chippewa Cree Indians of the Rocky Boy's Reservation, Montana, provides, inter alia: PREAMBLE We, the original and adopted members of the Rocky Boy's Band of Chippewa enrolled upon the Rocky Boy's Reservation in the State of Montana, in order to exercise our rights to self-government, to administer all tribal affairs to the best advantage of the individual members, and to preserve and increase our tribal resources, do ordain and establish this Constitution of the Chippewa Cree Tribe of the Rocky Boy's Reservation, Montana. ARTICLE I - TERRITORY The jurisdiction of the Chippewa Cree Tribe of the Rocky Boy's Reservation, Montana, shall extend to the territory within the Rocky Boy's Reservation as established by Act of September 7, 1916 (39 Stat. 739), amending the Act of February 11, 1915 (38 Stat. 807), in the State of Montana, and to such lands as have been or may hereafter be acquired and added to the Reservation by law. ... ARTICLE XII - JUDICIAL BRANCH SECTION 1. There shall be established a Judicial Branch within the tribal government to enforce ordinances and laws of the Business Committee, the Election Board and/or to administer justice through a tribal court. The Judicial Branch shall also provide an appellant body for tribal members who are aggrieved by decisions of the tribal court. Professor Smith attested that the jurisdiction of the Tribal Court with respect to Band members and non-members is largely governed by the Chippewa Cree Tribal Law and Order Code of 1987, referred to above. Hague Convention 020 The United States of America is a contracting state under the Hague Convention. This includes persons habitually resident in the State of Montana. I need not address the precise constitutional status of Rocky Boy's for the purpose of the Hague Convention. In this particular instance there was no request by the central authority in the United States of America to the central authority in Saskatchewan to enforce the provisions of the Hague Convention. The applicant made application directly to this Court, as permitted by Article 29. 021 In Struweg v. Struweg, [2001] S.J. No. 380, 2001 SKQB 283; (2000), 208 Sask.R. 243 (Q.B.) this Court observed at para. 27: [27] 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 a wrongful removal or retention of the child as contemplated by Article 3. Once it has been determined that a 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, supra [ [1994] 3 S.C.R. 551], at pp. 594-5 as follows: 1. More than a 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 a 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. 022 The respondent acknowledges the boys were habitually resident in Rocky Boy's, Montana, prior to their leaving Montana in February. Article 3 of the Hague Convention provides that the removal of a child is considered wrongful when it is in breach of rights of custody attributed to a person either jointly or alone under the law of the state in which the child was habitually resident before the removal. As observed in Struweg, supra, at para. 29: [29] With respect to whether there may be a breach of custody rights described in Article 3, Thomson, supra, at p. 580 it is stated: Custody, as understood by the Convention, is a broad term that covers the many situations where a person lawfully has the care and control of a child. The breach of rights of custody described in Article 3, it will be remembered, are those attributed to a person, an institution or any other body by the law of the state where the child was habitually resident immediately before the removal or retention. Article 3 goes on to say that custody may arise by operation of law. The most obvious case is the situation of parents exercising the ordinary care and control over their child. It does not require any formal order or other legal document, although custody may also arise by reason of a judicial or administrative decision, or by agreement. 023 Prior to the boys' removal, they resided either in the joint care of their parents or the care of their father. Separate and apart from any question of the efficacy of the Tribal Court orders, the applicant exercised the ordinary care and control of a parent over these children. Accordingly, there was a wrongful removal of these children from the State of Montana. In the circumstances, I need not make any finding with respect to the jurisdiction of the Tribal Court or the efficacy of the orders it made. 024 As to the question of whether any of the exceptions have been made out, the only potential issue is whether there is a grave risk that return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. The Supreme Court of Canada in Thomson v. Thomson, supra, observed in this regard at pp. 596-7: It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation.... In Re A. (A Minor) (Abduction), supra, [ [1988] 1 F.L.R. 365 (Eng. C.A.)] Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372: ... the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree ... that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words 'or otherwise place the child in an intolerable situation' 025 Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.) makes it clear that the decision of whether to return a child under the Hague Convention is not based on who should have custody. The evidence of the respective parents' parenting capacity or lack thereof while more germane to a custody determination does remain contextually relevant to an assessment of whether return places a child at grave risk of harm or would otherwise place the child in an intolerable situation. Turner v. Frowein, Docket No. FA-97-0081430, Connecticut Superior Court, J.D. of Middlesex at Middletown, June 25, 1998 (unreported), makes reference to a prior decision out of that jurisdiction of Panazatou v. Panazatou, Docket No. 713571, Superior Court, J.D. of Hartford, April 29, 1997, Barrall J. (unreported) in which the court found that the child's habitual residence was Greece but did not order the child returned because the mother proved by clear and convincing evidence the return of the child to Greece would cause a grave risk of physical and psychological harm. The court considered the circumstances which would be faced by the child and the mother if they returned to Greece. Because the mother faced a possible contempt order if she returned and also lacked the means to support herself and her child in Greece, the court found that the child would face a grave risk if returned. 026 I am also mindful of the comments in Finizio v. Scoppio-Finizio (1999), 46 O.R. (3d) 226 (C.A.) at paras. 34 and 35: [34] Third, there is simply no basis for suggesting that the Italian courts are not well-suited to deal with matrimonial issues, including support, custody and access. I agree with Jennings J. who said in Medhurst v. Markle (1995), 26 O.R. (3d) 178 at p. 182, 17 R.F.L. (4th) 428 at p. 432 (Gen. Div.): It is to be presumed that the courts of another contracting state are equipped to make, and will make, suitable arrangements for the child's welfare. [35] The English courts have taken a similar position on this issue. In C. v. C. (Abduction: Rights of Custody), [1987] 1 W.L.R. 654 at p. 664 (C.A.), Lord Donaldson of Lymington M.R. said: It will be the concern of the court of the State to which the child is to be returned to minimize or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done. Save in an exceptional case, our concern, i.e., the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country - Australia in this case - can resume their normal role in relation to the child. 027 The respondent seeks to invoke the exception on the basis that the relationship between her and the boys will be severed or restricted if there is a return order. To put the matter in perspective it must be remembered that until the separation of the parties the boys were in the care of both parents. During the separation the boys lived with their father. The respondent chose to remove the children from the jurisdiction. Her actions would have the effect of severing or limiting the relationship between the boys and their father. An application under the Hague Convention is not a determination as to what may be the appropriate custodial or parenting arrangement. It is a question of which jurisdiction ought to determine such issues. The evidence did not indicate that the respondent fled with the children to avoid physical or psychological harm to the children. The respondent chose to marry, have children and reside in the State of Montana. A return of the children to Montana could lead to a severance or limitation of the relationship between the respondent and the boys if the respondent chooses not to return to Montana, chooses to live in Saskatchewan or, she argues, because she may not receive a fair hearing from the Tribal Court. In these circumstances the decision to leave the jurisdiction and to seek to reside elsewhere with the children without a determination as to custodial rights having been made by the state in which the children were habitually resident, is a choice the respondent made and could be seen as an attempt to preempt the right of the state of habitual residence to determine custodial rights. She cannot, in the circumstances of this application, seek to invoke an exception to a return order on that basis. 028 Insofar as she suggests she may not receive a fair hearing from the Tribal Court, it is presumed that the appropriate judicial body in the state of habitual residence will determine custody issues appropriately and in accordance with the best interests of the children involved. The respondent has not demonstrated that this will not occur. Mere speculation is not a basis upon which an exception will be found. 029 To be clear this Court need not make any determination as to the appropriate court or tribunal in Montana to determine custodial rights. Montana is the appropriate jurisdiction to determine custodial issues and it is for the law of that jurisdiction to determine the appropriate forum. It must be remembered that the respondent acknowledges she was initially prepared to have the issue determined in Montana. 030 The respondent has not met the onus of establishing an exception to a return order. There will be a return order on the terms to be set forth at the conclusion of this judgment. The Children's Law Act, 1997 031 To seek to enforce an extra-provincial custody order in Saskatchewan, as if it were an order of this Court, an applicant must establish that there is an order made by a court or tribunal established in a jurisdiction outside Saskatchewan with authority under the laws of that jurisdiction to make such an order. The court may refuse to enforce the custody order if the respondent establishes any of the grounds enumerated in s. 17(2). The respondent here relies upon s. 17(2)(b)(iii), namely that the boys would suffer serious harm if removed from Saskatchewan. 032 As previously noted, the children were habitually resident in Montana prior to being removed to Saskatchewan. Section 17(2)(c) provides that this Court may refuse to enforce an extra-provincial custody order if the extra-provincial tribunal did not, at the time of making the order, have jurisdiction to do so in accordance with s. 15. At the time of the divorce decree and at the time of commencement of those proceedings, it is clear that the State of Montana had jurisdiction to make a custody order. The question then becomes whether the Tribal Court had jurisdiction under the laws of the State of Montana to make a custody order. 033 It would appear the Tribal Court has the authority under the laws of the State of Montana although the material is not as clear as it might be. The material filed indicates that a Tribal Court has jurisdiction over custody of Indian children on a reservation. It further says a Tribal Court judgment "can be recognized" in Montana District Courts, as a foreign judgment. The respondent suggests that there may be situations in which state law may supersede that of the Tribal Court with respect to protection of the rights of a parent of an Indian child. In the circumstances, I have concluded I need not determine if a custody order of the Tribal Court is eligible for enforcement pursuant to s. 17 as I have determined that it is appropriate to make a return order to the State of Montana pursuant to the Hague Convention. If there are any issues to be resolved in Montana as to which court or tribunal ought to exercise jurisdiction in these circumstances, it is for Montana to make those determinations. 034 While clearly obiter I want to make a number of observations. The respondent argued that she believed there was no custody order in effect in Montana because of the resumption of cohabitation subsequent to the divorce decree. As I have indicated, Montana is clearly the appropriate jurisdiction to determine custody issues. As previously noted, the lack of a custody order is no impediment to the enforcement of custodial rights under the Hague Convention. Thomson, supra, at para. 51 observed that the fact a parent who removed a child from a jurisdiction does not know they were violating a court order of that jurisdiction is not relevant to an application under the Hague Convention. 035 Insofar as the respondent argues that enforcement of an extra-provincial custody order in Saskatchewan would not be appropriate on the basis the children would suffer serious harm if removed from Saskatchewan, I refer to the previous observations with respect to similar provisions which exist in the Hague Convention. In my view the same considerations would apply to s. 17(2)(b)(iii). It would not, in the circumstances before the Court, constitute a reason not to enforce an extra-provincial custody order. Conclusion 036 There will be a return order to the State of Montana. In making a return order, the Court can require undertakings of the parties to deal with the transition between the return order and the time at which the custody issue comes before the appropriate judicial body in the state of a child's habitual residence. (Struweg, supra, at paras. 60 and 64.) In making a return order the court is not determining who ought to have custody but through the use of undertakings can seek to minimize the disruption of return for the children involved until the appropriate court can address custody and parenting issues. In Struweg, supra, there were extensive undertakings required. 037 In this instance undertakings would not be appropriate because of the uncertainty which exists given various events which have occurred in Montana. As noted, there is a divorce decree and a custody order. It is for the appropriate entity in Montana to determine the efficacy of such order. There is also the matter of what appears to be charges facing the respondent before the Tribal Court and a warrant issued to apprehend the respondent also issued by the Tribal Court. This Court is in no position to reach any conclusions as to the efficacy of these proceedings with respect to someone who is not resident on the reservation. At the same time, this Court recognizes these may well be legitimate proceedings which the respondent will have to address and in that context the Court cannot ignore these proceedings. 038 It is hoped that upon return of the children to Montana it will be recognized that there has not been a determination made as to an appropriate parenting arrangement in the context of having heard and considered the representations of both parents. The best interests and welfare of children is best served where there is a continuing relationship with both parents, assuming they are both adequate parents. It must also be remembered that E.S.M. and J.E.G. now have another sibling. It will be in their best interests that they continue to have a meaningful relationship with their new sibling. Once E.S.M. and J.E.G. are returned to the State of Montana, it is hoped further consideration will be given to whether the charges and the warrant are truly appropriate in the circumstances. 039 There will be an order for the return of E.S.M., born March 15, 1996 and J.E.G., born December 11, 1998, to the State of Montana, United States of America, within seven days of the date of this order. In the event that the respondent does not personally return the children, they shall be delivered to the care of their father, K.G. In the event the children have not been returned to Montana within seven days, the matter may be referred back to me by contacting the local registrar so that a further order may be made. 040 The applicant seeks the costs of these proceedings. In the circumstances there will be no order as to costs. The respondent was prepared to address the custody issue before the Tribal Court. It is clear she was deprived of that opportunity. There was clearly a lack of judiciousness in the proceedings. There was also no denial of the respondent's assertion she was told by a clerk of the Tribal Court that given their resumption of cohabitation there was no outstanding custody order. None of this excuses removal of the children as Montana is clearly the forum in which to determine custody issues. However, in my view costs would not be appropriate. McINTYRE J.