The court emphasized that child custody should prioritize the children's welfare, recognizing habitual residence and stability in their environment. The exclusive jurisdiction of the Canadian courts for custody of foreign nationals was reiterated.

[Enclosure 1 And 271

Introduction

[1] This is an application by the Plaintiff Husband for sole custody, care, and control of the children, namely Miranda Belle Guerrard and Freddie Phoenix Guerrard. The marriage between the parties has irretrievably broken down, and the Applicant intends to initiate divorce proceedings against the Defendant Wife.

[2] This Court has heard and reviewed the Applications [Enclosures 1 and 27] and is satisfied that it has the necessary jurisdiction to adjudicate both Enclosures. While it is acknowledged that the parties and the children are not Malaysian citizens, the children are, at all material times, habitual residents in Malaysia. The basis for this jurisdiction will be further elaborated in the subsequent paragraphs.

[3] The Defendant, being dissatisfied with the decision in encl 1 and encl 27, has since filed an appeal [Notice of Appeal(s) dated 18 June 2025] against the said decision [delivered on 11 June 2025]. This ground of judgment was prepared simultaneously to effectively address both appeals and for the purpose of this judgment, the parties shall be referred to as they were in the High Court.

Facts

[4] The Plaintiff's application for sole custody, care, and control of the Children initially arose from the Defendant's unlawful actions in forcibly removing and abducting the Children from their habitual residence in Malaysia and taking them to Canada on 7 May 2024.

[5] Despite the Plaintiffs repeated requests and/or appeals for the return of the Children to Penang, the Defendant has persistently and unequivocally refused to comply.

[6] Following an extensive legal process in Canada, the children were ultimately returned to their home in Penang, Malaysia, after the Supreme Court of British Columbia found and determined, among other things, that:

(i) the Defendant had wrongfully removed the children from Malaysia and brought them to Canada on or about May 7, 2024, and that she has wrongfully retained the children in Canada since that time; and

(ii) the children are not habitually resident in Canada and that they are habitually resident in Malaysia.

[7] Following a period of four (4) months marked by separation and abduction, the Children were reunited with the Plaintiff. Subsequently, on 8 September 2024, the Plaintiff brought the Children back to Malaysia, where they have since been under the exclusive care of the Plaintiff.

[8] Due to the aforementioned abduction, intolerable conduct, and mistreatment of the Defendant, the marriage has irreparably deteriorated, and the Plaintiff plans to commence divorce proceedings against the Defendant (which at the material time, no divorce proceeding was filed).

[9] The previously mentioned abduction was brought forth and submitted to this Court in the Plaintiffs application for temporary or interim custody, care, and control of the Children [Enclosure 4].

[10] This application was duly granted by this Court through the High Court Order dated 13 September 2024 [Enclosure 8], which granted interim custody, care, and control of the Children to the Plaintiff, while allowing reasonable access to the Respondent every Saturday from 3:00 PM to 6:00 PM. Further, on 21 March 2025 [Enclosure 33], parties came to terms and recorded an interim Consent Order in which the access period to the Defendant was extended in which the Defendant will be given access from 4:00pm on a Friday until 9:45 am on a Sunday ("overnight access").

[11] Due to concerns regarding potential further abductions and the wrongful removal of the Children from their lives in Malays