What is the test for finding that the children's habitual residence was in Buffalo?

As a result of the finding that the children’s habitual residence was in Buffalo, the Hague Convention applies. Stage two of the analysis as set out in Ludwig v. Ludwig, requires the court to return the children to their habitual residence as of the date of the wrongful removal unless the mother has provided sufficient evidence to apply one of the exceptions to the requirement that the children must be returned to their habitual residence. As the mother has only advanced an argument pursuant to article 13(b) [13] of the Hague Convention, the court must now determine whether requiring the return of the children to Buffalo will place them at grave risk of physical or psychological harm or place them in an intolerable situation?

There is an extensive body of case law that provides guidance in determining what would amount to grave risk of harm in the circumstances of a request for the return of children to a jurisdiction from which they were wrongfully removed. The grave risk of harm that is contemplated is one that would result in an intolerable situation. The risk has to be more than an “ordinary risk” and “one of substantial, and not trivial psychological harm.” See: Thomson v. Thomson, 1994 CanLII 16630 (SCC), 6 R.F.L. (4th) 290 SCC.