COURT FILE NO.: FS-23-107-00 DATE: 2024 03 28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ishan KALRA A. Naagar, for the Applicant

- and -

Shruti BHATIA R. Sangha, for the Respondent

HEARD: March 4, 2024

ENDORSEMENT

The Honourable Justice Ranjan K. Agarwal

I. INTRODUCTION

[1] The applicant Ishan Kalra and the respondent Shruti Bhatia, with the child of their marriage SK, moved to Canada to start a new life. But they brought with them the trials and tribulations of their troubled marriage. Less than three months after Ishan arrived in Canada and was reunited with Shruti and SK, the parties separated. Rather than agreeing on decision-making responsibility and parenting time or litigating those issues, Shruti tricked Ishan into believing that if he tried to contact SK, he’d be arrested. In the meantime, she abducted SK to India, where SK remains. SK hasn’t seen her father in over 15 months.

[2] Ishan moves for an order that Shruti return SK to Canada and for a parenting order. Shruti claims that the Ontario court has no jurisdiction to make a parenting order because SK is habitually resident in India.

[3] This case raises a special and, in my view, increasing challenge for our family court system. As Canada welcomes new immigrants and their families to study, live, and work here, our courts face the unique problem of children who live in and have connections to more than one place. The strength of their parents’ ties to Canada may wax and wane depending on the economy, changes in government policy, their health or the health of their extended family members, the nature of the parties’ relationship, or changes in their needs and desires. Parents may move to Canada only to get a Canadian education, and then return to their country of origin to start their careers. Or they may relocate here, along with their immediate and extended family, intending to become citizens. Or they may immigrate with one intention, but their plans change when their lives do. Their immigration status may allow them to travel between Canada and their country of origin frequently and stay in one place for a long time, without necessarily making that place their habitual residence. And, when a parent leaves Canada for a non-Hague Convention country with a child, our laws don’t provide a framework for how Ontario courts can enforce its jurisdiction over that child.

[4] In this case, I find that SK was habitually resident in Ontario at the start of this application. Thus, the Ontario courts have jurisdiction to make a parenting order. That said, I decline to make an interim parenting order at this time. I have insufficient evidence to determine what is in SK’s best interests. I’m also not persuaded that I have jurisdiction to make a “chasing order” as Ishan requests. Instead, I order that Shruti shall serve and file an answer on or before April 17, 2024. At the direction of the Regional Senior Justice, I’m assigned to manage this case and monitor its progress. The parties shall attend a case conference by videoconference at 9am on April 23, 2024.

II. BACKGROUND

A. Facts

[5] The parties were married in India in February 2017. SK was born in December 2017 in India. The parties and SK are all Indian citizens. Shruti immigrated to Canada on a study permit in April 2021. She enrolled at Algoma College.

[6] Shruti went to India in July 2021. She continued her education online. Shruti returned to Canada in March 2022 with SK (with Ishan’s consent). SK attended the local public school full-time. Shruti and SK visited India from June 27, 2022, to July 21, 2022.

[7] Ishan intended to immigrate to Canada with Shruti and SK, but his application for a visa was refused. Ishan eventually came to Canada in October 2022 on an open work permit. [1] The parties rented a house in Brampton. Shruti completed her studies in December 2022.

[8] Ishan moved out of the matrimonial home on December 20, 2022. Ishan blames Shruti for his departure; Shruti says Ishan left of his own volition. Ishan returned to the matrimonial home on December 25, 2022, to get his belongings.

[9] That same day, Ishan and Shruti messaged each other in Hindi and English (Hindi translation italicized):

Ishan: Now I can’t stay with you anymore you give me the daughter and I will take care of her very well please take the daughter back for a few days to India she will get better there as she wants friend Shruti: now I will not be going Ishan: You told me to leave the house so I left and came further I don’t want to be upset with daily fight Shruti: you go to India take child with you

[10] In January 2023, Shruti asked Ishan to complete an application to change SK’s name. He didn’t do so.

[11] Ishan didn’t see SK after he and Shruti separated: he wasn’t “mentally stable”, he didn’t have housing, he couldn’t afford food, and he didn’t have “much funds ” (Arpit Gupta, a friend, let Ishan stay rent-free with him immediately after the separation). Ishan tried to contact Shruti through a mutual friend—she allegedly responded, “he’s dead to me”.

[12] In February 2023, Shruti’s lawyer Rajat Chauhan (who isn’t Shruti’s lawyer on this motion) emailed Ishan a notarized declaration entitled “Reporting Letter of Separation”. The declaration states that Shruti had obtained a restraining order against Ishan: “That there is a restraining order issued for you, Ishan Kalra which restricts you to meet me and my child, [SK].” The declaration also threatens “monetary and criminal actions” if Ishan doesn’t stop his “harassment and other unwanted actions”. The declaration says that Shruti had “independent legal advice” for “drafting” the letter.

[13] Around this time, Shruti was working at a restaurant in Vaughan.

[14] In April 2023, Shruti and SK visited India for Shruti’s brother’s wedding. SK has remained in India since then.

[15] Shruti returned to Canada on July 3, 2023. She remained in Ontario until December 12, 2023, except for around 3 weeks in September and October, when she visited India for SK’s birthday. She rented a room in Wasaga Beach and worked in a restaurant. Shruti has a visitor visa (which allows her to travel to Canada) valid from March 3, 2023, to January 30, 2027. She has a work permit (which allows her to work in Canada) valid from February 2023 to February 2026.

[16] Ishan was frightened by the threat of a restraining order. He thought that if he tried to see SK, the police would put him “directly in jail”. He didn’t have money to retain a lawyer. He eventually raised enough money to have a brief consultation with a lawyer in April or May 2023.

[17] In August, Ishan’s father saw SK in India. Ishan didn’t know that Shruti had taken SK to India. That same month, Ishan emailed Mr. Chauhan asking for a copy of the restraining order. Mr. Chauhan didn’t respond. Ishan finally retained a lawyer. The lawyer checked the court file—there’s no restraining order against Ishan.

[18] There are several proceedings in India. First, on April 21, 2023, the police, under section 154 of [The Code of Criminal Procedure, 1973], “reduced to writing” the information that Shruti provided them alleging “commission of a cognizable offence”. This document is a First Information Report. As I understand, an FIR is like reporting a crime to the police. On the basis of this FIR, the Indian court issued a warrant for Ishan’s arrest. He says he’s never been served with the warrant. Second, on October 6, 2023, Shruti started family court proceedings against Ishan for a divorce under section 13(1) of [The Hindu Marriage Act, 1955]. Finally, on November 24, 2023, Shruti and her mother started family court proceedings against Ishan’s parents, seeking the equivalent of a restraining order against them.

[19] Both parties allege that the other was abusive and violent, which is what led to the marriage breakdown. I don’t find this evidence probative of the jurisdiction issues—though family violence might be a relevant fact or circumstance to determining parental intention in some cases (for example, if a parent moved to escape family violence), I don’t find that it’s material here.

B. Litigation History

[20] On September 18, 2023, Ishan started a family law case seeking a divorce, a parenting order, and table child support. Ishan couldn’t file the application because he didn’t have a personal income tax return and notice of assessment for the three most recent taxation years (he wasn’t a Canadian taxpayer before 2022).

[21] On September 22, 2023, Ishan filed an “urgent motion”. Under the Notice to the Profession and Parties – Central West Region, updated effective September 1, 2023, a party may seek an urgent motion on notice without a case conference in situations of “urgency or hardship such as abduction”. See also Family Law Rules, r 14(4.2).

[22] Ishan’s notice of motion sought various relief, including an order that he be allowed to file his application without tax information, an order for substituted service (because he only had Shruti’s email address), and an order that Shruti return SK to Ontario. The judge reviewing the motion concluded that it wasn’t urgent. Ishan was directed to schedule a motion for substituted service in the ordinary course. The motion judge also granted him leave to file his application without the tax information. The endorsement made clear that the issue of jurisdiction “must also be addressed”.

[23] Shruti acknowledges receiving notice of the proceeding by email on October 16, 2023 (which apparently resolved the service issue). This application was finally issued on November 10, 2023. [2] She retained a lawyer. She hasn’t answered the case (presumably because she’s challenging jurisdiction and doesn’t want to attorn).

[24] Ishan scheduled a motion for January 5, 2024. Ishan’s notice of motion again sought, among other things, an order that Shruti return SK to Ontario. Ishan filed two affidavits, dated November 8, 2023, and December 29, 2023. Shruti filed an affidavit, dated December 4, 2023. Shruti’s affidavit asserts that SK’s habitual residence is India.

[25] At the hearing on January 5th, the motion judge adjourned the motion to an Early Case Conference. The motion judge wasn’t persuaded that the motion should be heard before a case conference.

[26] On January 22, 2024, I presided over a case conference in this matter. Given that the motion raised allegations of abduction, the Regional Senior Justice directed me to schedule a hearing of this motion promptly. [3] I endorsed a timetable for the remaining steps in the motion. Given the credibility issues raised by the parties’ evidence, I directed that the parties and their affiants be cross-examined orally. See Zafar v Azeem, 2024 ONCA 15, at para 69. I allowed Shruti and her affiants to testify by videoconference because they were in India.

[27] Ishan filed another affidavit, dated February 12, 2024. He also filed an affidavit from Mr. Gupta. Shruti filed another affidavit, dated February 20, 2024.

C. Evidentiary Issues

1. Inadmissible Evidence

[28] The parties’ affidavits included inadmissible evidence. For evidence to be receivable, it must be “relevant, material and admissible.” Evidence is relevant if “as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a fact more probable than it would be otherwise.” Evidence is material if what it is “offered to prove is in issue” in the proceedings or assists the trier of fact in assessing other evidence. Evidence is admissible if the trier of fact is legally permitted to consider it. If the evidence is relevant and material but inadmissible, it can’t be considered by the trier of fact. See R v Candir, 2009 ONCA 915, at paras 48-49.

[29] For example, Shruti alleges Ishan cheated on her. Ishan denies the allegation. Shruti introduced a photo of Ishan’s alleged mistress, sitting on a couch, by herself. This evidence doesn’t prove that Ishan was having an affair (even if that evidence were somehow material to the issue of jurisdiction).

[30] Shruti also adduced “legal research” done by her lawyer as an exhibit to her affidavit. This evidence is plainly inadmissible—there’s no need for a witness to attach statements of law to their affidavit when their lawyer can file a factum for the motion.

[31] Shruti introduced a Facebook message chat between her and Ishan that was in Hindi, but wasn’t translated by a certified interpreter. It is inadmissible. Shruti withdrew this exhibit.

[32] Finally, both parties relied on evidence that wasn’t material. The issue on this motion is SK’s habitual residence. Shruti’s December 4th affidavit introduces evidence about a dowry, harassment, Ishan’s alleged alcoholism, Ishan’s family’s preference for a son, and broken financial commitments. Ishan responded point-by-point to Shruti’s allegations. Shruti replied. Ishan sur-replied. It’s possible this evidence was introduced for the parenting order sought by Ishan (though, even then, it’s hard to see how some of this evidence is relevant or material to the child’s best interests).

[33] At the hearing, when Ishan’s and Shruti’s lawyers sought to cross-examine the witnesses on these allegations, I asked about the relevance of this evidence on the jurisdiction issue. Rather than defend its relevance, the lawyers chose to move on to other questions. I took that to mean that they either agreed that the evidence was immaterial or they weren’t relying on it.

[34] Only Ishan, Shruti, and Mr. Gupta were cross-examined. Both parties attached affidavits from their family members as exhibits to their affidavits. It’s unclear why they didn’t file these affidavits independently (other than, perhaps, to get around the Notice, which limits evidence on short motions to one primary affidavit—though this rule doesn’t apply to wrongful removal cases). These other witnesses weren’t presented for cross-examination, so the evidence is inadmissible. The parties agreed that this evidence was being withdrawn.

2. Credibility Issues

[35] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Reliability engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue isn’t credible can’t give reliable evidence on the same point. Credibility, on the other hand, isn’t a proxy for reliability: a credible witness may give unreliable evidence. See R v GF, 2021 SCC 20, at para 82; R v HC, 2009 ONCA 56, at para 41.

[36] As I elaborate on below, I don’t find Shruti’s evidence to be reliable or credible. She didn’t seem honest about several issues, including her explanation about the alleged restraining order or her reasons for returning to Canada in July 2023. I believe she deliberately lied to trick Ishan from having contact with SK. I believe she lied again about why she returned to Canada to try to undermine her and SK’s ties to Canada. Her evidence about Ishan’s alleged consent was unreasonable—the messages between her and Ishan say the opposite of what she says happened.

[37] In contrast, I found Ishan’s evidence to be reliable and credible. He seemed honest, including about events that aren’t favourable to him (such as his failure to contact SK between December 2022 and February 2023). His evidence was reasonable and consistent. Unlike Shruti, his explanations made sense.

D. Legislative Framework

[38] Ishan effectively seeks a “chasing order”. This term is used under Article 12 of the [Hague Convention on the Civil Aspects of International Child Abduction, Can TS 1983 No 35], to describe an order for “return of the child” where they’ve been “wrongfully removed or retained”.

[39] India isn’t a party to the Hague Convention. As a result, Ishan relies on the [Children’s Law Reform Act, RSO 1990, c C.12], and the court’s parens patriae jurisdiction.

[40] A court shall only exercise its jurisdiction to make a parenting order with respect to a child if the child is habitually resident in Ontario at the start of the application for the order. See CLRA, s 22(1)(a). Sections 22(1)(b) and 23 don’t apply here because SK hasn’t been physically present in Ontario since April 2023.

[41] A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.
2. If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
3. With a person other than a parent on a permanent basis for a significant period of time.

See CLRA, s 22(2).

[42] The removal or withholding of a child without the consent of all persons having decision-making responsibility over the child doesn’t alter the habitual residence of the child unless there’s been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. See CLRA, s 22(3).

[43] A court having jurisdiction to make a parenting order with respect to a child may decline to exercise its jurisdiction if it believes that it’s more appropriate for jurisdiction to be exercised outside Ontario. See CLRA, s 25.

[44] Though both parties relied on section 40 of the CLRA, it’s not applicable here. Section 40 gives the court discretion to order the return the child to another jurisdiction.

[45] Under section 37, the court can make certain orders to prevent the unlawful removal of a child from Ontario. That said, I wasn’t provided any statutory authority giving me jurisdiction to order the return of SK to Ontario.

III. ANALYSIS AND DISPOSITION

[46] The parties’ evidence and submissions raise two issues:

(a) whether SK was habitually resident in Ontario or India when this application was started; and (b) whether there has been acquiescence or undue delay in commencing due process by Ishan.

[47] To the extent that I find that Ontario has jurisdiction to make a parenting order, the parties’ evidence and submissions raise the added issue of the appropriate order.

A. SK’s Habitual Residence is Ontario

[48] Under section 22(2) of the CLRA, I must first determine whether SK was most recently living with both parents or with Shruti (with Ishan’s consent, implied consent, or acquiescence).

[49] Ishan asserts that SK was last living with both parents on December 20, 2023. Shruti asserts that she and Ishan have been living separate and apart since December 20th and SK was last living in India with her with Ishan’s consent or acquiescence.

1. Ishan Didn’t Consent

[50] Shruti’s argument that Ishan consented to SK living with Shruti in India is based on: (a) Ishan’s December 25th messages; and (b) alleged oral statements he made consenting to Shruti taking SK to India.

[51] “Unequivocal consent to such a move must be clear and concise, not based on inferences.” See Duman v Duman, 2017 ONCJ 629, at para 88.

[52] I find that Ishan didn’t consent to SK living with Shruti or in India. First, the text messages don’t say what Shruti asserts they do. Ishan wasn’t consenting to Shruti taking SK to India permanently—he was suggesting that SK go to India to visit her friends “for a few days”. He also wasn’t consenting to Shruti having sole decision-making or exclusive parenting time—he offered to “take care of [SK] very well”. Shruti’s argument is undermined by her own words: “you go to India take child with you”. She’s suggesting that if Ishan believes SK should visit her friends, he should take her.

[53] Second, I don’t find Shruti’s evidence about Ishan’s oral consent credible. In her two affidavits, Shruti never mentions these oral statements. Her evidence on this issue was introduced, for the first time, in cross-examination after Ishan had testified. That is impermissible case-splitting: a party may not split its case, first relying on prima facie proof, and when this has been shaken by his opponent, adducing confirmatory evidence. See Singer v Schering-Plough Canada Inc., 2010 ONSC 42, at para 52.

2. Ishan Didn’t Acquiesce

[54] Shruti argues that Ishan acquiesced in SK residing with her in India. She relies on the fact that Ishan didn’t contact SK after he moved out on December 20th.

[55] I find that Shruti tricked Ishan into believing that he would be in legal jeopardy if he contacted her or SK after February 28, 2023. It wasn’t until February 5, 2024 (over a year later) that Shruti finally confirmed that there was no restraining order against Ishan.

[56] Shruti argues that Ishan could’ve checked with the police, the court, or his parents to confirm that he wasn’t subject to a restraining order. That argument is preposterous—it can’t be that a party lies about a court order, and then argues that the other party accepted the situation by either believing the lie or failing to properly investigate the lie. Also, when Ishan asked Mr. Chauhan for a copy of the restraining order in August 2023, he received no response. I’m not sure what better due diligence there is—he asked Shruti’s agent, who notarized the letter and emailed it to him, for a copy of an incorporated document only to be met with stone silence.

[57] Further, Ishan’s context is important here. He moved to Canada, a foreign country, two months earlier. He was in Canada on an open work permit that depended on Shruti’s status in Canada. As a newcomer, I infer that he didn’t know or have information about how restraining orders operate here. He didn’t have assets or income to retain a lawyer until August 2023. In short, Ishan’s status was incredibly precarious. It’s unsurprising that he feared contacting Shruti or SK at the risk of jeopardizing his employment status, immigration status, or, worse, his liberty.

[58] Finally, Shruti’s evidence around the declaration isn’t credible. Mr. Chauhan sent the declaration to Ishan in February 2023. He didn’t respond to Ishan’s request for a copy of the restraining order in August 2023. Ishan’s November 2023 affidavit introduced the declaration. Shruti’s responding affidavit said nothing about the declaration. Ishan pointed this out in his December affidavit. The issue was then raised at the case conference in January 2024. Then, and only then, Shruti’s lawyer emailed Ishan’s lawyer to explain that the statement about the restraining order was a “miscommunication” between Shruti and Mr. Chauhan. Shruti finally deposed to this alleged miscommunication in her February 2024 affidavit, blaming Mr. Chauhan for inserting the reference to a restraining order. She didn’t call Mr. Chauhan as a witness. I don’t find that explanation believable. If Shruti’s statement was truly a misunderstanding, surely she would have explained that at least in her December 2023 affidavit (or, better, Mr. Chauhan should’ve advised Ishan in response to Ishan’s August 2023 inquiry).

[59] I also find Shruti’s request that Ishan consent to changing SK’s name concerning. One inference is that Shruti sought to change SK’s name to make it easier for them to cross the border.

[60] Shruti responds that, even then, Ishan acquiesced by failing to contact SK after December 20th. First, Ishan explained that the period right after their separation was tumultuous: he wasn’t “mentally stable”, he didn’t have steady housing, and he didn’t have money. I infer from Ishan’s evidence that he thought he needed a lawyer to see SK, and he didn’t have the resources to retain a lawyer. That’s a reasonable belief for a newcomer who’s unfamiliar with our parenting laws.

[61] Second, even if Ishan ought to have made efforts to contact SK, he didn’t agree to Shruti permanently taking SK to India. There’s no evidence that Shruti advised Ishan that she was moving to India with SK, or that Ishan tacitly or passively accepted the situation. Given Shruti’s immigration status, it was reasonable for Ishan to believe that she and SK intended to stay in Canada.

3. The Relevant Links and Circumstances Show that SK’s Habitual Residence is Ontario

[62] There’s some caselaw that section 22(2) of the CLRA provides a complete answer to the determination of habitual residence. See Korutowska-Wooff v Wooff, at para 9 (Ont CA); Logan v Logan, 2022 ONSC 4927, at para 28; Korenic v DePotter, 2022 ONSC 3954, at para 22; Markowski v Krochak, 2022 ONSC 2497, at paras 62-66; Mehralian v Dunmore, 2023 ONSC 2616, at para 44; and Barakat v Andraos, 2023 ONSC 582, at para 66.

[63] In Zafar v Azeem, the Court of Appeal held that the test for determining a child’s habitual residence under the Hague Convention in Office of the Children’s Lawyer v Balev, 2018 SCC 16, applies equally to determining a child’s habitual residence under the CLRA. In determining a child’s habitual residence under Article 3 of the Hague Convention, courts should adopt a “hybrid approach” that looks to “all relevant considerations arising from the facts of the case at hand”, including the child’s situation and the parents’ intentions, especially where the child is an infant. See Balev, at paras 42-47. There’s no “legal test for habitual residence and the list of potentially relevant factors is not closed”. See Balev, at para 47. Each case must be decided on its own facts and circumstances.

[64] Zafar arguably contradicts both the plain words of the CLRA, which defines habitual residence in a specific non-Hague context, and the Court of Appeal’s earlier decision in Geliedan v Rawdah, 2020 ONCA 254, which found that it was an error for the motion judge to “apply a Hague Convention approach when determining” a CLRA application under section 40. [4]

[65] In Los v Ross, 2024 ONCA 122, at para 31, the Court of Appeal affirmed that the test for determining a child’s habitual residence under the CLRA is the “hybrid approach” from Balev. In Aldahleh v Zayed, 2024 ONSC 547, Justice Tobin held that the concept of parental intention is captured by section 22(2) (“consent, implied consent or acquiescence”) but, following Zafar, the court must also consider the “circumstances of the children”.

[66] In my view, this case shows why a hybrid approach must be used to analyze a child’s habitual residence. Even though SK was physically present in Ontario when she was last with both parents, Shruti’s position is that SK never “resided” in Ontario. Again, section 22(2) defines “habitual residence” as “the place where the child resided” not the place where the child was “physically present”. Both sections 22(1)(b)(i) and 23(a) use the words “physically present”, which must mean something different than “resided”. Different words, different meanings. See Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, at para 81. Though “asking and answering where the child last lived during what period of time” is important, other factors are also important. See Zafar, at para 74.

[67] Several relevant facts aren’t disputed:

• Shruti, Ishan, and SK are all Indian citizens
• Shruti, Ishan, and SK were temporary residents of Canada
• SK was enrolled in an Ontario public school while living in Canada; she’s now enrolled in school in India
• SK was in Canada for just over a year
• SK’s grandparents are in India; Shruti has extended family in Canada

[68] Shruti argues that Ishan forced her and SK to move to Canada. In her telling, Ishan was desperate to move to Canada or the U.S., but he was repeatedly refused a visa. Ishan and his family then forced Shruti to apply for a student visa, and, when it was granted, to move to Canada. She eventually brought SK to Canada because Ishan and his parents were harassing her. She was blackmailed into sponsoring Ishan. She says that as soon as Ishan settled in Canada, he moved out against her wishes.

[69] In response, Ishan relies on Mr. Gupta’s evidence that Shruti told him that she was “excited” and “eager” to move to Canada. I don’t find Mr. Gupta’s evidence reliable—his affidavit turns on meeting Shruti at her father’s house and visiting her father’s gas station when, in fact, it was her father-in-law’s house and gas station. Mr. Gupta corrected his evidence only after Shruti’s father pointed out the error. Though Mr. Gupta was cross-examined and credible, I don’t give his evidence any weight.

[70] Again, I don’t find Shruti’s evidence to be credible. After she and SK moved to India in April 2023, Shruti returned to Ontario for almost six months. She rented a room and found temporary work. In cross-examination, she testified that she came back to Canada to reconcile with Ishan. But there’s no evidence that she made any substantive efforts to reconnect with him, never mind reconcile. She says that she tried contacting him through a mutual friend, but she otherwise didn’t have his contact information. On cross-examination, she admitted having Ishan’s email address but says that email “is not to connect” for reconciliation (she didn’t explain why, especially if this was the only information she had). I don’t find it believable that Shruti would return to Canada for almost six months, leaving SK in India, in an apparent attempt to reconcile with Ishan but then take no active steps to even contact him.

[71] Shruti’s oral evidence is also undermined by her own affidavit:

39. Moreover, there was lack of support from Ishan and he abandoned me and my daughter, all this made me decide to move back to India for the sake of my child better future, where she can be looked after by my parents and I being a single mother can work to financially be stable to raise my child and provide her with all the necessities.
40. So, I decided that me and [SK] will stay in India, but in between I will come to Canada to maintain the status for the sake of my daughter, if in future she would like to come to Canada.

[72] Her affidavit evidence suggests that she’s seeking to maintain her status as a permanent resident of Canada by traveling to Canada from time to time.

[73] Shruti’s explanation also contradicts her affidavit evidence on two other points. First, she says she went to India because, in December 2022, Ishan said he was going back to India. If that was the case, it’s unclear why she returned to Canada in July 2023 to try to reconcile with him here instead of reconnecting with him in India. On one hand, Shruti says that Ishan had a “craze” to move to North America, to the point that he and his family forced her to immigrate but, on the other hand, he wanted to move back after living here for only two months. That doesn’t make common sense.

[74] Second, in her December 2023 affidavit, she states that she went to India in April 2023 for her brother’s wedding—that evidence is more consistent with her return to Canada in July 2023. It means her trip in April was a visit to India, not a move from Canada.

[75] Also, Shruti’s Facebook profile from November 2023 describes her as “Enjoying life in Canada”. That public statement is inconsistent with someone who’s only in Canada temporarily trying to find her husband.

[76] Shruti relies on an affidavit that Ishan made in support of Shruti’s immigration application: “I further assure you that she will leave Canada on completion of her studies or any time she asked to so by Canadian Immigration Authorities.” Shruti argues that this evidence shows that Ishan knew she was returning to India. I don’t read the affidavit that way—Ishan isn’t foreclosing the possibility that Shruti will get a work permit and stay in Canada (which is exactly what happened).

[77] Shruti raises two other arguments that she says point to India as SK’s habitual residence. First, she argues that she or her parents have been SK’s primary caregivers since birth. The parties disagree on who parented SK while Shruti was in Canada from April 2021 to July 2021. Ishan asserts that he cared for SK with the help of his parents. Shruti asserts that Ishan left SK with her parents almost immediately after she left India, in part because he was cheating on Shruti. Ishan responds that he left SK with Shruti’s parents for a short period when he had COVID, but otherwise parented SK. Because I don’t find Shruti’s evidence to be credible, I reject her view. I find that Ishan was SK’s primary caregiver while Shruti was in Canada from April 2021 to July 2021. I find that Shruti and Ishan jointly parented and made decisions for SK before Shruti immigrated to Canada, from July 2021 to March 2022 when Shruti visited India after immigrating to Canada, and again from October 2022 to December 2022, when Ishan was in Canada.

[78] Second, in her February affidavit and orally, Shruti asserts that Ishan is only staying in Canada to avoid the legal proceedings against him in India. I believe Ishan’s evidence that the Indian legal proceedings aren’t relevant to his intention to stay in Canada. Shruti has introduced no evidence to contradict Ishan’s statement that he hasn’t been served with the arrest warrant. I’ve been provided no evidence on the nature of the arrest warrant or the consequences of the FIR. I can’t assume that these legal proceedings have the same consequences as they might in Canada without expert evidence about them. Also, this argument contradicts Shruti’s evidence that Ishan had a “craze” to immigrate to Canada.

[79] In sum, I prefer Ishan’s evidence that he and Shruti made a familial decision to move to Canada. Shruti came to Canada on a student visa, and then supported Ishan coming to Canada as soon as she could do so. I find that Shruti intended to move to Canada and become a permanent resident or citizen. The circumstances show that SK’s habitual residence was Ontario but for Shruti’s unlawful removal. As a result, I find that Ontario has jurisdiction to make a parenting order with respect to SK.

B. Declining Jurisdiction Isn’t Appropriate Here

[80] Again, a court having jurisdiction under the CLRA in relation to decision-making responsibility or parenting time with respect to a child may decline to exercise its jurisdiction if it believes that it’s more appropriate for jurisdiction to be exercised outside Ontario. See CLRA, s 25.

[81] Motion judges have identified two tests. First, in Nawasreh v Ahmad, 2023 ONSC 1515, at para 40, the court held that section 25 “appears to be a codification of the common law doctrine of forum conveniens.” In Club Resorts Inc. v Van Breda, 2012 SCC 17, at para 108, the party raising the forum issue must show “that the alternative forum is clearly more appropriate and that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to choose an alternative forum and to deny the plaintiff the benefits of [their] decision to select a forum.” The Supreme Court, at paras 110-1, listed several non-exhaustive factors:

• the locations of parties and witnesses
• the cost of transferring the case to another jurisdiction or of declining the stay
• the effect of a transfer on the conduct of the litigation or on related or parallel proceedings
• the possibility of conflicting judgments
• problems related to the recognition and enforcement of judgments
• relative strengths of the connections of the two parties
• loss of juridical advantage

[82] Second, in several other cases, the court has applied a “balance of convenience” test (like under section 22(1)(b)(vi) of the CLRA), with specific reference to the purposes of Part III of the CLRA, especially that “it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection”. See CLRA, s 19(b); Barakat v Andraos, 2023 ONSC 582, at paras 69-71; Malpani v Malpani, 2022 ONSC 4123, at paras 14-23; Korenic v DePotter, 2022 ONSC 3954, at paras 36-44; Castillo v Reynoso, 2021 ONSC 680, at paras 49-57; and Cook v Rosenthal, 2021 ONSC 1653, at paras 93-119.

[83] In these cases, the courts have considered several factors in deciding “closer connection”:

• the locations of parties and witnesses
• the place of the child’s doctor, dentist, school, and extra-curricular activities
• the child’s school attendance record
• the residence of the child’s friends, family, and caregivers
• the existence of a court order or court filings

See also MAJ v CS, at para 21 (Ont CA), in which the Court of Appeal relied on some of these factors without expressly identifying a legal test.

[84] In HE v MM, 2015 ONCA 813, at para 82, the Court of Appeal reminded us that the CLRA mandates a “a child-centered approach based on the best interests of the child in discouraging child abduction.” Given that, I don’t believe the “clearly more appropriate” test or the factors used for that test should apply to family law proceedings involving parenting disputes—children “have no control over where their parents litigate.” See HE, at para 82.

[85] To that end, I prefer the balance of convenience test, informed by factors that allow the court to conclude which forum is in a better position to dispose of the parenting issues. These factors include consideration of the place where the child has a closer connection.

[86] Shruti points to several factors that she says makes India the better forum. The nub of her argument is that she’s started family law proceedings in India and only Indian courts can give her relief “pertaining to Matrimonial, Dowry, Stridhan (women’s property), harassment and coercion”. In essence, Shruti is making the argument that India is in a “better position” to dispose of this case because she’ll lose a juridical advantage. But Shruti has led no admissible evidence on Indian law that allows me to determine that India is a more appropriate forum to litigate the parenting issues. Further, all of Shruti’s other arguments about forum (i.e., location of witnesses, place of marriage) focus on the matrimonial dispute between her and Ishan, not the parenting issues over SK.

[87] That said, SK has been in India since April 2023—she’s going to school there and her grandparents live there. But these connections arise because Shruti unlawfully abducted SK. If a parent is allowed to wrongfully remove a child from Ontario, settle the child in a new place, and then successfully argue that the new place is the better forum to litigate parenting issues because the child now has a closer connection to the new place, such a ruling would undermine the jurisdiction analysis and risks encouraging child abductions from Ontario. See Malpani, at para 18.

[88] As a result, I refuse to exercise my discretion to decline jurisdiction under section 25 of the CLRA.

C. The Appropriate Remedy Is an Order that Shruti Answer the Case

[89] Ishan urges me to make a chasing order. I’m not prepared to do so, in part because I’m not persuaded that I have jurisdiction to make such an order. As discussed above, section 40 of the CLRA doesn’t apply because SK has been wrongfully removed from Ontario. The orders under section 37(3) can be used to “secure the prompt, safe return” of a child to Ontario but chasing orders aren’t included as possible relief. Section 28(1)(c) allows me to make an order prohibiting a party from removing a child from Ontario without the consent of another party or an order of the court but that order is incidental to a parenting order.

[90] I wasn’t provided any statutory authority giving me express jurisdiction to order the return of SK to Ontario.

[91] I acknowledge that our court has, in other cases, made chasing orders. See, e.g., Malpani. But I haven’t been provided any caselaw in which the court’s jurisdiction was expressly considered. Perhaps, in those cases, the respondent consented to a chasing order if the court found jurisdiction. Ishan asks me to use the court’s parens patriae jurisdiction because there’s a gap in the legislation that would entitle the court to make such an order in SK’s best interests.

[92] Even if such a gap existed, I don’t know if ordering Shruti to return SK to Ontario is in SK’s best interests. Perhaps the court will authorize SK’s relocation to India (and order that Ishan’s exercise of parenting time and decision-making responsibility should reflect SK’s new place of residence). Again, the motion before me wasn’t to determine SK’s best interests on these issues. It would be premature to order Shruti to return SK to Ontario before the court has a hearing to determine SK’s best interests.

[93] As a result, the appropriate order is that Shruti should answer the case, and this application should proceed to trial quickly:

(a) Shruti shall serve an answer and an affidavit in Form 35.1 on Ishan on or before April 17, 2024; and (b) the parties shall attend a virtual case conference before me on April 23, 2024, at 9am.

[94] The parties should operate on the basis that the trial of this application may be heard during the trial sittings starting May 12, 2024.

D. The Parties Shall Make Costs Submissions If They Can’t Agree

[95] The parties will engage in meaningful discussions and negotiations respecting the costs of this motion. If they can’t resolve costs, any party seeking costs will serve, file, and upload to CaseLines costs submissions (1000 words), any relevant offers to settle, and their bill of costs by April 9, 2024, 4pm. The other party’s responding submissions (1000 words) will be served, filed, and uploaded to CaseLines by April 15, 2024, 4pm.

IV. CONCLUSION

[96] The breakdown of a marriage is tragic. The heartbreaking end to Ishan’s and Shruti’s relationship could only have been made more complicated by their shaky status as new immigrants to Canada. But, based on the evidence before me, I’ve no doubt that Shruti and Ishan intended to live, with SK, in Canada. By fleeing to India, Shruti has unlawfully abducted SK, in violation of our country’s laws.

[97] Making matters worse, she’s denied SK her legal right to parenting time with Ishan. Parenting time is the child’s right. If Shruti has valid arguments that it’s in SK’s best interests that they relocate to India, she should make that claim in our courts.

________________________________ Justice R.K. Agarwal Released: March 28, 2024

Footnotes

[1] Ishan described the permit as a “spouse open work permit”, which I understand to mean an open work permit granted to spouses of international students or foreign workers.

[2] The “Date of Issue” on the Form 8: Application (General) states “November 10, 2022”. But the clerk’s signature is dated November 10, 2023, and the parties concede that the application was issued in 2023 not 2022.

[3] Rule 37.2 of the Family Law Rules applies to “international child abduction cases”, which are defined as “an application involving the alleged wrongful removal to or retention of a child in Ontario”. Here, SK has been allegedly wrongfully removed from Ontario so the case is governed by the usual rules for motions, case conferences, and urgency.

[4] See also Franks & Zalev - This Week in Family Law, Fam L Nws 2024-08 (WL), for a discussion of this debate.