Court Information

Ontario Court of Justice Date: August 7, 2015 File No.: Brampton 386/15

Parties

Between:

PRATHEEPAN JEYATHAS Applicant

— AND —

SRI PARRI PRATHEEPAN Respondent

Before the Court

Justice: Philip J. Clay In Chambers: August 7, 2015 Reasons for Decision Released: August 7, 2015

Counsel:

• Ms. Christine Vanderschoot – counsel for the Applicant
• Mr. Manny Chahal – counsel for the Respondent

CLAY J.:

MOTION

PROCEDURAL BACKGROUND

[1] The Applicant father ("the father") issued an Application on April 16, 2015 seeking, among other grounds of relief, an order that the parties share joint custody of their child Ishan Pratheepan born April 18, 2014. The Respondent mother ("the mother") retained counsel and the matter proceeded to a Case Conference on July 21, 2015.

[2] The father's affidavit made reference to the content of his Case Conference Brief. The briefs and the discussions at a conference are not to be relied upon in subsequent steps in a court proceeding. It should be noted though that as the parties had property issues to litigate they agreed that an Application will be brought in the Superior Court of Justice at Brampton on all issues. That Application has yet to be issued so this court retains jurisdiction. Both parties sought direction with respect to access to the child and the ability to bring a motion in this court. The order arising out of the conference was that the mother had leave to bring a motion to obtain a passport for the child and to travel with the child to Sri Lanka for his maternal uncle's wedding on August 21. The father was granted leave to bring a cross-motion for an order that the child could attend his paternal uncle's wedding in Ontario on August 24. Both parties filed their motions and supporting affidavits in accordance with the time lines set out.

AFFIDAVIT EVIDENCE

Mother's Position

[3] The mother's affidavit stated that she had asked the father in January 2015 to consent to her obtaining a passport for their child and to her traveling with the 15 month old to her family's home in Colombo, Sri Lanka to attend her brother's wedding. The wedding date had been set for August 21 and many extended family members from around the world would be attending. The father opposed her plan and conflict over this issue contributed to the breakdown in the party's relationship.

[4] On March 9, 2015 the father was charged with assaulting the mother. She moved out of the home with the child and there was no contact with the father until June 21, 2015. At that time access was arranged at the Peel Supervised Access Centre and the father had supervised visits for 2 hours every two weeks followed by 2 hours once a week. On July 21 the parties tried to work out expanded access but no formal agreement was reached as the mother proposed day access 10:00 a.m. to 3:00 p.m. on Fridays and Saturdays (father's days off) and the father sought access Friday overnight to Saturday. It appears from the father's affidavit that he has been seeing the child on the time proposed by the mother.

[5] The mother attached to her affidavit proof of the August 21 wedding and copies of her plane tickets for a flight leaving on August 12 and returning to Toronto on September 4, 2015. The mother is residing with her aunt and uncle in Mississauga and they would accompany her on the trip. Although the actual wedding is not until August 21 the mother wanted to have a three week trip due to the distance and travel time involved and due to the fact that none of her extended family outside Canada had seen the child.

[6] The mother's affidavit noted that she had immigrated to Canada in June 2013 after obtaining a university degree in Sri Lanka. She said that she had been blocked from seeking employment by the father whom she described as a controlling and abusive spouse. The mother said she had every intention of returning to Canada. She noted the following:

a) she was a landed immigrant and had lived in Canada over two years;

b) her son was a Canadian citizen;

c) she lived with family members from Sri Lanka who had settled in Canada and she had other family members in the GTA;

d) she had gone to Colombo for a wedding two months after coming to Canada and returned without incident;

e) she had property claims in Canada against the father as the parties had owned a home here (now registered to the husband and his brothers) and she and the father had a joint bank account with $26,000 in it that she was prepared to have stand as security for her return; and

f) Sri Lanka is a signatory to the Hague Convention.

Father's Position

[7] The father said that the mother was a flight risk and that he was "certain" that the mother would not return from Sri Lanka. He noted that:

a) The mother was not a Canadian citizen;

b) The mother had no employment in Canada;

c) The mother was living with an aunt and uncle and their family in a crowded apartment;

d) The mother's father in Colombo was wealthy and she could live in comfort there;

e) The mother could not speak English well and had not made efforts to assimilate into Canadian culture;

f) The mother was in receipt of social assistance; and

g) The mother had frustrated his contact with the child after the separation and was motivated to eliminate him from involvement in his son's life.

[8] The father also made reference to information provided to him by his mother regarding what an unnamed person in Sri Lanka had told her. This is at least double hearsay, it is not admissible, and I have not considered it in my decision.

[9] The father said that if the mother chose to keep the child in Sri Lanka he would be left with an application under the Hague Convention. He alleged that the Sri Lankan justice system was slow and corrupt and that this was an empty remedy when the paternal grandfather is wealthy.

[10] The father filed the decision of the Ontario Court of Appeal in De Silva v. Pitts, 2008 CarswellOnt 41. He relied upon it for the proposition that the Hague Convention is an imperfect remedy and that a signatory country can exercise its discretion to not return a child to another signatory. The facts in that case were quite unique and certainly distinguishable from the facts here. In De Silva the Ontario court did not order that a 15 year old youth was required to come to Ontario where there was a custody order in the mother's favour. However, the mother had breached an Oklahoma order in the first place by taking her child to Sri Lanka and then to Canada. She obtained custody orders in both jurisdictions without advising about the pre-existing Oklahoma order. Significantly the youth wanted to live in Oklahoma where he had been living with his father. This decision does not support the father's argument.

[11] Finally the father stated that Colombo, Sri Lanka was a dangerous city and that the Tamil minority there were at particular risk. He filed exhibits from Amnesty International and Human Rights Watch in support of his position. His concern was a general one as he had no evidence of a specific threat to the mother or her immediate family.

[12] The father's cross motion sought an order that he be able to take the child to his brother's wedding in Scarborough on August 24, to the August 16 Pooja religious celebration and to the paternal grandmother's birthday celebration on August 19.

[13] The father's material included a receipt showing that the temple had been booked on June 6. The mother believed that the father may have arranged for a wedding to be booked for August to block her plans for her own brother's wedding. In fact, the father took the position that with two "competing" weddings that the one in Canada presented no flight risk or safety issues.

[14] The mother filed a reply affidavit which demonstrated that there were a number of other family celebrations in Colombo during the time that she would be there including her parent's 35th wedding anniversary.

ANALYSIS

Best Interests of Child

Flight Risk

[15] I find that there was no specific evidence that the mother would be a flight risk if permitted to leave Canada with the child. The mother was a landed immigrant who had lived here for over 2 years. She had proposed access arrangements to the child which were being complied with. While many members of the mother's immediate family still lived in Colombo, the wedding guest list showed that there were extended family members living around the world. The mother was living with family in Mississauga and they, together with relatives in Toronto, were a support for her in this country. The child was born here and is a Canadian citizen. The mother had made the decision to immigrate to Canada. She had gone to Sri Lanka shortly after immigrating and she returned. It is true that she is now separated from the father and has no job. She states that this is because the father forced her to stay home with the child. The mother does speak English and I accept that she asked for an interpreter in court just in case there were words that she did not understand. Still, it is quite likely that if she wanted to move back to Sri Lanka that she would have the support of her family there. The mother says she has absolutely no intention of returning to Sri Lanka when she and her child will have so many more opportunities in Canada. Nevertheless, there are some factors that could cause the father to worry about the mother not returning.

[16] The mother anticipated the father's concerns and has made some provision for them. She has filed a copy of her return ticket, she has proven that the father owns property here and she has an equalization claim here. She is prepared to have the joint bank account stand as security for her return. It is true that the account is presumptively only one half hers but if she does not return the father will have access to the entire account to fund a Hague application.

[17] I find that the Hague Convention is a significant factor here. I will note that the young child is habitually resident in Brampton Canada. The child is a Canadian citizen which should engage Canadian authorities to assist the father if the child does not return. Furthermore, the father has roots in Sri Lanka, speaks the language and will be able to access the justice system there in the event of non-return. I cannot accede to the father's position which is essentially to say that the convention has no meaning. Such a defeatist approach would mean that Canadian children would be denied the opportunity to visit with family members throughout the globe simply because other countries cannot be trusted to do what they have agreed to do.

[18] While I find that there are remedies in place to protect the father if the mother does not return I should note that based on all of evidence I fully expect that the mother will return with the child.

Security Concerns

[19] I find that there is no doubt that Sri Lanka is a country with major security issues and that there are places in that country in which it would be dangerous to travel. On the other hand the father is the one who noted that the mother's father is wealthy and could easily take the mother in and make sure she is provided for. The wedding guest list shows that there are many family members who are traveling to Sri Lanka from Canada, England and Australia among other countries. Presumably they do not feel that attending this wedding puts them at a heightened risk of harm. The mother herself has traveled to Sri Lanka and returned without incident. I note that the mother and young child will not be attending political rallies or protests. There is absolutely no evidence that suggests that the mother and her family are at any more risk than any other Tamil family in Sri Lanka. I do not dismiss the father's concerns about the political situation in Sri Lanka generally. However, I find that the father's stated security concerns must be put into context. In this case that involves both specific and general context.

[20] The context that is specific to this family is that the father had no objection to his new bride, the mother, traveling to Sri Lanka for another wedding two years ago. He claims to be extremely worried about his child's safety now yet apparently did not have the same concerns about the mother then.

[21] The general context is that notwithstanding concerns about the volatile political situation in Sri Lanka hundreds, if not thousands, of Canadians travel to Sri Lanka on a regular basis to visit with family. While horrific incidents of terrorism have occurred in Sri Lanka the sad reality of the world is that there are very few places left that have not been touched by some form of terrorism at some time. Yes innocent people do die in terror incidents the world over but innocent people are also killed in road accidents in Ontario when traveling to see family. There will always be places where children should not travel, such as active war zones and each security concern must be examined on the evidence before the court. I find on the evidence before me that there is no significant risk of harm to the child in Colombo, Sri Lanka.

Paternal Family Events

[22] I can understand why the mother might have initially felt that the paternal uncle's wedding was intended to block her trip. It appears not to have been mentioned by the father before the March 9 separation. The wedding was booked at the same time as the father was frustrated because he was not seeing the child. Nevertheless, there are invitations and a guest list and it could be that the two uncles' weddings, occurring on two different continents, within days of each other is, simply a coincidence. It is understandable that the father would want to have his young son at his own brother's wedding. However, I do not find that these weddings are "competing." The mother wants to go to Sri Lanka so that her extended family from around the world who will be gathered in Colombo can see her child for the first time.

[23] The father also included a list of family members who would be attending the wedding here. The phone numbers of these relatives show that almost all of them live in the GTA. This means that they have either already seen the child or will have other opportunities over the years to do so. The mother also has a number of relatives in the GTA that will form part of her support system. However, unlike the father, her parents live in Colombo.

[24] The child did attend the family reunion at the Pooja ceremonies last year and it appears that this is an annual event that the child can attend. These cultural and family events are important and I would expect that any final resolution of time sharing between the parties will take them into consideration. The reality is though that this 15 month old child will have no memory of every having attended weddings or other celebrations. It is the parents who have an emotional need to show the child to their family and the family which has a corresponding desire to see the child. The paternal family, largely based in the GTA, has had that opportunity. With some exceptions the maternal side has not.

[25] There are practical considerations also. At the present time the father's access to the child is not overnight and due to the criminal charges it involves supervised exchanges or exchanges at a police station. The child is with the mother at all other times. If the child was to stay here to attend the paternal family events the mother would be unable to travel without the child to her brother's wedding. She could not be away from the child for that long given his age and the current time sharing. The father could not care for the child for an extended period of time overnight for the same reasons. I am making no assumptions as to the outcome of the criminal charge. It will be dealt with in criminal court. I expect that access will expand over time as the child becomes older. However, at this point in time the father can definitely attend his brother's wedding and all paternal family events. On the other hand the mother cannot attend her brother's wedding unless she has the child with her. For that reason alone I do not see the two weddings as equivalent to each other for these parties.

ORDER

1. The child Ishan Pratheepan, born April 18, 2014 shall have his primary residence with the Respondent mother Sri Parri Pratheepan.

2. The Respondent shall be permitted to apply for a passport for the said child without the consent and signature of the Applicant father Pratheepan Jeyathas.

3. a) The Respondent shall be able to travel with the said child to Colombo, Sri Lanka from August 12 to September 4, 2015 without the consent of the Applicant. This authority to travel is extended for up to one week in the event of an unavoidable travel delay due to problems such as unavailability of transportation or illness of the child or the Respondent;

   b) The Respondent shall advise the Applicant by text or e-mail as soon as possible if her travel itinerary changes;

   c) The Respondent shall provide any changes in contact numbers immediately upon a change to ensure that she can be reached by a representative of the father in the event of an emergency involving the father; and

   d) The Respondent shall scan and e-mail to the Applicant a copy of the child's passport as soon as it is obtained.

4. The said child resides in the Regional Municipality of Peel in the Province of Ontario, Canada and therefore:

   a) The child is ordinarily and habitually resident in Canada; and

   b) The Ontario Court of Justice at Brampton has exclusive jurisdiction over the custody of the child.

5. The Respondent shall provide security for costs in the event of her not returning from Sri Lanka with the child. The terms are as follows:

   a) The Respondent shall not withdraw any funds from the parties' joint bank account at TD Canada Trust which contains a balance of approximately $26,000 until she returns to Canada with the child;

   b) Immediately upon her return the Respondent shall send the Applicant a text or e-mail confirming that the child is back in Canada and upon doing so the security for costs is released; and

   c) If the Respondent does not return with the child to Canada on September 4, 2015 having not advised by text or e-mail of an unavoidable delay, then the Applicant can access the funds to take legal action to have the child returned.

6. The Respondent may make a costs submission as follows:

   a) The submission shall be limited to two pages double spaced together with any offers to settle made and a bill of costs;

   b) The submission shall be served and filed before September 18, 2015; and

   c) The Applicant may serve and file a response submission limited to two pages by September 25, 2015.

Released: August 7, 2015

Justice Philip J. Clay