Court File and Parties
Court File No.: D53117/11 Date: 2014-06-19 Ontario Court of Justice
Re: Kavitha Purushothaman (applicant mother) And: Bala Radhakrishnan (respondent father)
Before: Justice Robert J. Spence
Counsel:
- Ms. Caroline Sand – counsel for mother
- Father in person
Motion Heard: June 18, 2014 Decision Released: June 19, 2014
Endorsement
Issue
[1] The mother wishes to travel with the parties' seven year old child to India for a three week vacation in August, in order to visit with her family. The father objects, arguing that it is more likely than not if the mother is allowed to travel with the child, she will remain there permanently. He also argues that the child will not benefit from such a trip.
Outcome
[2] On the evidence before the court I have decided that there is no realistic basis for concluding that the mother is likely to engage in self-help by permanently removing the child from Canada. Further, having regard to all the evidence in this case, I have concluded that the child would benefit from such a trip and, accordingly, it is in his best interests that he be allowed to make this trip with his mother.
Discussion
[3] The father argues that the following factors are indicative of a likelihood that the mother would not return to Canada with the child:
When the mother travelled to India with the child in 2010, she was long-delayed in returning to Canada.
The mother's family is primarily located in India, with few if any family members outside of India, and none in Canada.
The mother has yet to obtain her Canadian citizenship.
India is not a signatory to the Hague Convention, and if mother were to refuse to return to Canada with the child it would be very difficult for father to enforce, in India, a subsequently obtained custody order in Canada.
Mother wishes to apply for a Person of Indian Origin card ("PIO") for the child.
[4] The mother cites the following factors as indicia of the likelihood that she will return to Canada:
The mother has lived in Canada for eight years.
She has remained at the same fulltime job for the past five years.
She owns a condominium residence.
She recently purchased an automobile.
She has submitted her application for Canadian citizenship.
The child was born in Canada and is a Canadian citizen, having lived all his life in Canada.
[5] While the father agrees in theory that it would be beneficial for the child to visit India in order to be exposed to his cultural heritage, the father says that at the age of only seven years, the child is too young to absorb anything in a meaningful way. I find this to be a puzzling argument given that the father himself acknowledges that the child is in school, is doing well and is capable of learning concepts and ideas. I also take judicial notice that young children – and certainly school-age children - are well capable of absorbing, in their own, age-appropriate way, new experiences and new ideas. I reject father's argument that the child is too young to benefit from such a trip. I will have more to say about this later in my endorsement.
[6] The age/benefit issue aside, it would appear that the father's main objection centres on his view that the mother would abduct the child if she were allowed to travel with him to India.
[7] Father's argument that mother overstayed her trip to India in 2010 is not borne out by the evidence. Without going into detail, the timing of that trip, including the mother's return to Canada, is well explained by the mother in her material.
[8] Furthermore it is beyond dispute that the mother did in fact return with the child, even though at that time the parties were at the height of their conflict and the mother had not as yet obtained a custody order, something which in 2010 was very much unresolved.
[9] There is very persuasive evidence in the record that this relationship was one that could be characterized as both physically as well as emotionally abusive, with the father attempting to exert control over the mother's life and her behaviour. The incidents which led to the mother issuing the Application in this court suggest that mother might have been strongly motivated to simply "run away" from the father very early on in this proceeding or, indeed, even before she commenced a proceeding in this court.
[10] However, she did not do so. She remained a resident in Canada and continued to work through the parties' issues in an orderly and law-abiding way. Simply put, she relied on the Canadian legal system, rather than taking matters into her own hands and engaging in the kind of self-help that father is now arguing she would do if she were allowed to travel to India with the child.
[11] The mother was granted final sole custody in February 2012. That issue has now been put to rest. Following the settlement of the custody issue, all that remained to be resolved was the finalization of father's access and his child support obligations. Those issues were finalized by order of Justice Brownstone on May 29, 2013, with the result that all litigation has now been fully settled for more than one year. If mother ever had a motive to abscond with her child it would have been prior to February 2012 or, at least, prior to May 2013, while the litigation was ongoing. As I stated, she did not do so. Her motive to do so now, in 2014, is not at all apparent from the evidence. Nor can I even speculate as to any logical reason why she might be motivated to act in such a way, now that the litigation has come to an end and, more particularly, given that custody was resolved in her favour.
[12] I do not agree with father that a PIO card is an indicator that mother intends to abscond with the child. As the evidence discloses, that card would allow the parties' child to travel periodically to India for a period of up to 15 years without having to go through the bureaucratic process of applying for a visa each time the family intended to travel to India, with the attendant fees that would also have to be paid each time a visa was sought. In that sense, I view the PIO card as akin to a long-term travel visa.
[13] I do agree with the father that the fact the mother has no immediate family in Canada is a factor the court ought to take into account in deciding this issue. However, it is a factor only, to be weighed against all the other factors in this case.
I also agree that the Hague Convention issue is a factor but, again, it is a factor only.
[14] The father placed considerable reliance on a decision of Justice A. Pazaratz in Mahadevan v. Shankar, 2010 ONSC 5608 (S.C.J.), in which that court denied a father's request to take a four year old child to India. In refusing the father's request, the court noted that India is not a signatory to the Hague Convention. In that regard, the court had before it an affidavit from a New York State lawyer specializing in international family law, who expressed the opinion that if a child were abducted to India, the court system in India would make it very difficult for the child to be returned to Canada.
[15] However, the facts in Mahadevan were very different than the facts in this case. In Mahadevan:
The child was only four years old. The child in this case is age seven years. Justice Pazaratz stated: "if the child was a bit older, he might adjust better to such a long time away from home and he might derive more lasting benefit from his time in India" [my emphasis]
The father had made threats to remove the child permanently from Canada to be raised by extended family in India. Here, the mother has made no such threats.
The proposed trip arose at "precisely the same time that custodial arrangements . . . [were] going to be subject to review". Here there is no such review of custody and, in fact, as I noted earlier, custody was finalized more than two years ago.
The father had arranged to take a one year sabbatical from his job. Here, the mother's employment is ongoing and in "good standing", her employer specifically having approved a vacation from August 5 to August 22, 2014.
There were many serious allegations – which Justice Pazaratz characterized as "plausible" - about the father and his motives for wishing to take the trip to India. Here, any similar allegations made by the father against the mother lack an evidentiary underpinning and, accordingly, cannot be taken as serious or "plausible" by the court.
[16] Based on all the factual and legal considerations, Justice Pazaratz correctly noted that,
The benefit of the proposed vacation does not nearly outweigh the risks. While family and cultural enrichment are to be promoted, the court must give primacy to the child's physical and emotional security.
[17] In the result, and having regard to all the foregoing, Justice Pazaratz concluded [my emphasis]:
Even if some of the [mother's] allegations about the [father's] attitude and behaviour are true, it would be naïve and reckless to disregard the real possibility that someone – either the [father] or perhaps members of his family in India (who appear to be quite invested in this dispute) – might be tempted to resort to self-help, rather than rely on a Canadian court system which has thus far disappointed them.
[18] What I take from Mahadevan is the necessity to weigh the benefits of travelling as against the "plausible" risks. This weighing process is very fact specific. In some cases, the facts will require the court to refuse the travel request, as did Justice Pazaratz. In other cases, the facts will lead to the opposite conclusion.
[19] In this case, it is important to note that the mother has never resorted to self-help to achieve her goal of obtaining sole custody. Instead, she relied on the Canadian court system, a system which did not "disappoint" her. Her behaviour thus far does not suggest that she would suddenly, and for no apparent benefit, resort to abducting the child.
[20] As against all the factors advanced by the father, which I outlined above, I must weigh the aforementioned six factors/indicia which the mother advances in support of the likelihood that she will in fact return to Canada. I find those factors far outweigh the considerations advanced by the father.
[21] But this is not solely about balancing the pros and cons of mother's likelihood of returning to Canada with the child. It is also about the benefit to the child from participating in such a trip. If the child was years younger – as in Mahadevan - I might have taken a different view than I do in this case, at least insofar as the perceived benefit to the child is concerned. Here, the parties' child is seven years old. There is a real opportunity for the child to become exposed to the Indian culture in a meaningful way by spending time with his extended family in India.
[22] The father says that the maternal grandparents are well able to travel to Canada, as they did in the past. I have no evidence on the grandparents' ability to travel to Canada, including their present health or financial circumstances. However, even if it were the case that they could travel to Canada, it makes little sense to deprive the child of such a trip if the weight of the evidence makes it highly unlikely that the mother will abscond with him and if the benefit of the proposed trip outweighs the risks.
[23] Furthermore, the opportunity to be immersed in the Indian culture comes not from the grandparents visiting Canada, but from the child visiting India. This, in my view, is something that the child ought not to be deprived of, in the particular circumstances of this case.
[24] I wish to make it clear that I have given no weight to a number of documents filed by the father which purport to raise alarm bells about international abductions, including:
A document from Canada Foreign Affairs which appears to suggest that in an 18 year period from 1997 to 2014, there was a total of 29 parental abduction cases to India involving children born in Canada. How many thousands, perhaps tens of thousands, of children were taken to India by their parents during this period of time? Twenty-nine abductions over an 18 year period is a non-contextualized number which does not assist this court in any way.
A letter dated May 9, 2014 from the father addressed to the Honourable John Baird, Minister of Foreign Affairs in which the father urges the Minister to "send a circular to all family court judges across Canada not to allow any biological parent to take the child to India when [the] other biological parent objects". I view this letter as little short of a campaign on the part of the father, a campaign which does not assist this court in determining the issue. The father sent that letter only after he was faced with having to respond to this travel motion.
A similar "campaign" letter dated May 15, 2014 from the father to the Honourable Peter MacKay, Minister of Justice.
Conclusion
[25] For all of the foregoing reasons, I make the following order:
The mother is at liberty to travel with the child to India this summer for a period of up to three weeks.
The mother shall provide the father with her travel itinerary, together with copies of her airline tickets and an emergency contact number, not less than 21 days prior to the intended travel date.
The parents shall agree on reasonable makeup access for the father, to take place following the mother's return to Canada.
[26] If the parents are unable to agree on reasonable makeup access I may be spoken to. However I caution both parents to be reasonable insofar as makeup access is concerned as there may be cost consequences if a court attendance is required and if I determine that either parent acted unreasonably in negotiating this issue. In the negotiation of this issue, the parties might consider that it is not necessarily reasonable to simply translate every day of missed access into an equivalent day of makeup access. Further, if the makeup access is significant, it should occur over a reasonably extended period of time, rather than in a concentrated period immediately following the child's return to Canada.
[27] Finally, if, as I suspect, there will be further requests by the mother in the coming years for travel with the child outside Canada, I caution the father to refrain from objecting to such travel on similar grounds as advanced by him in this motion. The object of court proceedings is to finalize disputes, not to perpetuate them.
[28] In the event the mother seeks her costs of this motion, she shall make submissions in writing, not to exceed three pages in length, exclusive of any bill of costs or supporting documents, submissions to be made within 30 days following the mother's return to Canada with the child, the father's responding submissions, also not to exceed three pages in length, to be filed within 15 days thereafter.
Justice Robert J. Spence June 19, 2014
