Court of Appeal for Ontario

Date: 2018-09-10 Docket: C65192

Justices: Sharpe, Juriansz and Roberts JJ.A.

Parties

Between

Srichand Reddy Kunuthur Applicant (Respondent)

and

Deepti Govindareddigari Respondent (Appellant)

Counsel

For the Appellant: Harminder Dhillon and Sukhman Grewal

For the Respondent: Manjeet Kaur and Kavita Ramnanan

Heard: August 16, 2018

On appeal from: The order of Justice Jamie K. Trimble of the Superior Court of Justice, dated March 1, 2018.

Reasons for Decision

Introduction

[1] This is a custody dispute concerning the parties' son who is 13 years old. He is currently living in India where he has been for the past five years.

[2] The mother and father married in 2004. Shortly thereafter, they relocated to the U.S. where the father had a job. The son was born while they were there and is an American citizen.

[3] The family moved to Brampton in 2011 and became permanent residents. In April 2013, while the father was away for business, the mother took the son to India, she said to visit her ill mother. When the father returned from the business trip, all of the son's personal belongings had been removed.

[4] In June and July 2013, the mother brought petitions for divorce and custody in India.

[5] On October 9, 2014, on the father's ex parte motion, Sproat J. granted an order that the mother return the child to Ontario and that the father be granted temporary custody. The mother did not appeal or move to set aside the order, and did not return the child to Ontario.

[6] The father brought a motion to have the mother found in contempt of Sproat J.'s order, which came on before the motion judge on March 1, 2018. The mother appeared before the motion judge, admitted she took the child, having advised the father while on the airplane that they were leaving to visit her ill mother, and stated she wanted to return to Ontario and address custody and access here. She explained that she had been unable to return the son to Ontario because his U.S. passport had expired.

[7] The motion judge found that the child's habitual residence was Ontario and so proceeded on the basis that the Ontario courts had jurisdiction. However, in light of the mother's submissions, he did not find her in contempt but ordered she surrender any passports she held until she returned the child to Ontario. He also made a final order granting the father sole custody.

[8] The mother appeals from the motion judge's order, submitting that he erred by finding that Ontario has jurisdiction and by making a final order granting sole custody to the father.

[9] Both parties tender fresh evidence. The fresh evidence establishes that the child has developed strong links to India. He is well settled in school and, it seems, does not wish to return to Canada. The fresh evidence also provides information about the proceedings in India.

A. Jurisdiction

[10] The motion judge did not discuss the basis of the court's jurisdiction in any detail, no doubt as the mother said before him that she wanted to return to Ontario to address custody and access to the child. The transcript of the hearing shows she said so repeatedly. However, given that she was facing contempt unrepresented, her counsel has persuaded us that what she said should be understood as indicating an intention to return to Ontario to oppose the father's Ontario application by contesting Ontario's jurisdiction, as stated in her Answer to the father's application. Consequently, and in light of the abundant fresh evidence filed, we consider the issue of jurisdiction more fulsomely.

[11] The jurisdiction of the Ontario courts to determine the custody of the son is governed by s. 22 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. The section provides:

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually resident in Ontario at the commencement of the application for the order;

(b) [not relevant]

(2) A child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where 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; or

(c) with a person other than a parent on a permanent basis for a significant period of time,

whichever last occurred.

(3) The removal or withholding of a child without the consent of the person having 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.

[12] Relying on s. 22(3), the mother argues the father has acquiesced in a change to the child's "habitual residence" by unduly delaying the proceedings. The mother submits that applying the "hybrid" approach to "habitual residence" adopted by the Supreme Court in Office of the Children's Lawyer v. Balev, 2018 SCC 16, 5 R.F.L. (8th) 1, the child had developed more extensive and deeper links connecting him to India than Canada by the time of the father's Ontario application.

[13] The mother also contends that the Ontario court should decline jurisdiction because the father has attorned to the courts in India.

(i) Delay

[14] The mother removed the child to India in April 2013. The father received the mother's notice requesting his consent to a mutual divorce and asked for two months to respond. When the mother started proceedings for custody in India in July 2013, the father responded by seeking the dismissal of the mother's custody petition on the grounds that the Indian court did not have jurisdiction.

[15] Although we accept the father's explanation that the almost three-and-a-half-year delay in enforcing the order of Sproat J. is due to the fact that he was not aware of when the mother may have been present in Canada, we question whether the father's initial delay in commencing an Ontario proceeding was undue.

[16] The child was taken to India in April 2013, but the father did not commence a custody application in Ontario until more than a year later at the end of June 2014. The father says he received confusing and incorrect advice from the police, duty counsel and a lawyer. While the father says he "approached" a lawyer, he filed no evidence and does not claim that he actually retained a lawyer to obtain proper advice. In the time that elapsed, it seems to us he had ample opportunity to do so.

[17] However, it is not necessary to decide the issue of delay as we are satisfied the father has attorned to the courts in India and the Ontario courts should decline exercising jurisdiction.

(ii) Attornment

[18] A party attorns to a court's jurisdiction when it goes beyond simply challenging the jurisdiction of that court and, instead, litigates a claim on the merits: see Van Damme v. Gelber, 2013 ONCA 388, 115 O.R. (3d) 470, at paras. 3, 24, leave to appeal refused, [2013] S.C.C.A. No. 342; and Wolfe v. Wyeth, 2011 ONCA 347, 282 O.A.C. 64, at para. 44.

[19] After the mother commenced her custody petition in the Family Court in India, the father also filed a petition in the Family Court in India in October 2013 disputing its jurisdiction. He also brought a Civil Revision Petition before the High Court for a stay of the Family Court proceeding relating to custody. On April 17, 2015, the High Court made an interim order refusing to stay the Family Court custody proceedings, stating the Family Court could deal with the issue of jurisdiction if raised by the father.

[20] The parties provided limited assistance in understanding what has happened since then. As of June 14, 2018, it seems the father has not obtained a final ruling on his Civil Revision Petition to the High Court. The custody petition has been proceeding in the Family Court. No ruling of the Family Court relating to jurisdiction has been placed before us. The mother submits the father has failed to take any steps to obtain any ruling the Family Court does not have jurisdiction. In the Family Court the father has made interlocutory applications for interim custody of his son while the father was in India, however, there is nothing to show he has abandoned his position regarding jurisdiction of the Family Court over the mother's custody petition.

[21] That said, the father has filed a counter petition in India to the mother's petition for divorce. In that counter petition, he has invoked s. 6 of the Hindu Minority and Guardianship Act, 1956 (which he claims "clearly lays down that the guardian of [the] Hindu minor in respect of the minor's person … is the father"). The final relief he seeks in his counter petition is dismissal of the mother's petition for divorce and that "custody of the minor boy may be ordered to be given to the respondent with immediate effect".

[22] Even though the father's present position in the custody proceedings in India is unclear, it appears to us that, by seeking a final order of custody on the basis of Indian law in the divorce proceeding in India, the father has attorned to the courts in India. The proceedings in India are well underway. On that basis, we conclude the Ontario court should have declined jurisdiction.

B. Custody

[23] In any event, the motion judge erred by making a final custody order in the father's favour in a summary manner. Subsection 24(1) of the Children's Law Reform Act states that the merits of a custody application "shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4)." Subsection 24(2) reads as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

[24] The motion judge was required to consider the factors set out in s. 24(2), in particular, the overarching factor of the best interests of the child. There is nothing in the record before us to indicate that he did so.

C. Conclusion

[25] The appeal is allowed. The order of the motion judge is set aside and the father's motion for custody is stayed. Costs of the appeal and the motion to stay are fixed in the mother's favour in the amount of $20,000, all inclusive.

"Robert J. Sharpe J.A."

"R.G. Juriansz J.A."

"L.B. Roberts J.A."