SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-13-77328-00
DATE: 20130710

RE: GOBIND SINGH v. SONICA SAINI

BEFORE: K. van Rensburg J.

COUNSEL:
Charles Mota, for the Applicant
Amanpreet Nagpal, for the Respondent

E N D O R S E M E N T

[1] The applicant commenced these proceedings in March 2013 seeking a divorce, custody of the parties’ child, Jigar Singh-Saini, and return of the child to Canada from India where he currently resides with the respondent mother. The respondent brought this motion to challenge the jurisdiction of this court, pursuant to s. 22 of the Children’s Law Reform Act (“the CLRA”). It is her position that the child is habitually resident in Hoshiapur, which is in the province of Punjab in India, and that this court should decline jurisdiction to make any order respecting his custody.

[2] There are several facts in dispute as appears from the contradictory affidavits of the parties. The following facts however are not in dispute:

• The applicant and the respondent were married in India in December 2010 and they lived together in Brampton from December 21, 2010, until they travelled to India for a five month holiday in August 2012;

• There is one child of the marriage, Jigar, who was born January 9, 2012 in Brampton;

• The applicant is a dual citizen of Canada and India, while the respondent is a Canadian citizen who was raised in India and only lived in Canada after her marriage;

• The marriage relationship was tumultuous, and the parties broke up and got back together again on several occasions after Jigar’s birth;

• While they were in India, the mother left the home of the father’s parents with the child, and they have been residing with her family in India since that time;

• The mother returned to Canada in November 2012 without the father’s knowledge and removed money and jewellery from a bank safety deposit box;

• The father returned to Canada in January 2013;

• The status of the mother and child in India is uncertain, as both are in India on travel visas;

• The mother has commenced a guardianship application in India, which was recently served on the father.

[3] According to the applicant, upon their arrival in India, the mother left his parents’ home with the child immediately and refused to return. According to the respondent, the three resided with the applicant’s parents for two months until she was expelled from their house with the child and told to return only if she brought a certain sum of money. Both assert that there were various discussions and confrontations between their respective families.

[4] There is also a dispute about whether the father offered any financial support to the mother while she has been in India. He contends that he had transferred $450 to her, which she refused, and she contends that no support was paid and that she has been emotionally, financially and physically supported and cared for by her parents.

[5] The court application in India contains allegations respecting the conduct of the respondent and his parents, mainly respecting disputes over money, and contains very little information related to the best interests of the child. Much of what is alleged to have occurred took place in Ontario when the father’s family was visiting. The mother’s family also filed a police complaint in December 2012 in India, which contains various allegations of demands for money, maltreatment and threats. It appears that the parties are engaged in a “dowry” dispute.

[6] Prior to leaving India, the father began to actively investigate how to pursue child abduction proceedings against the mother. On his return to Canada he filed a missing person’s complaint in January 2013 with Peel Police respecting his son, asserting that the boy was being wrongfully withheld in India. He commenced these proceedings in March 2013, and the mother was served at the end of that month.

[7] There is no issue that the child is not being properly cared for by the mother and her parents, although the applicant contends that they are living in a region of India designated as a “Backward Area”, where there are few amenities.

[8] Section 22(1) of the CLRA provides that a court shall only exercise its jurisdiction to make an order for custody of or access to a child where, the child is habitually resident in Ontario at the commencement of the application for the order, or where the child at the time the application is commenced the child is physically present in Ontario and certain other conditions exist. Since Jigar is not present in Ontario, the issue is whether he is “habitually resident” here.

[9] Section 22(2) of the CLRA defines “habitual residence” as follows:

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.

[10] Section 22(3) provides as follows:

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.

[11] The habitual residence of the child prior to the parents’ departure for India was Brampton, Ontario. The question is whether the habitual residence changed when the parties lived separately in India and while Jigar has continued to reside with his mother. The mother contends that this occurred with the “consent, implied consent or acquiescence” of the father, while the father denies that he consented and relies on s. 22(3), asserting that the child has been withheld without his consent, and that he has moved promptly to commence these proceedings seeking Jigar’s return.

[12] It is acknowledged by the mother that, at the time they left Canada, the plan was to stay in India only for a temporary visit. Certainly, when they travelled to India there was no intention to alter the child’s habitual residence. Even now, the mother is unable to say whether she wishes to relocate to India on a permanent basis, likely because of her uncertain status in that country.

[13] The question is whether the habitual residence of the child has been altered, and that depends on whether Jigar is living with his mother in India with the applicant’s “consent, implied consent or acquiescence”. The fact that the child has been in India longer than he lived in Ontario is irrelevant absent evidence that the father consented to or acquiesced in the de facto custody by the mother.

[14] While the father knew that the mother and child left to go and live with her parents at some point after they arrived in India, I cannot conclude on the evidence that he consented to or acquiesced in this arrangement, other than on a temporary basis. The expectation was that mother and child would return to Canada in January 2013 after the vacation had ended, and when the mother indicated that she did not plan to return with the father, from that point the child was withheld without the father’s consent. The father acted promptly to seek the child’s return.

[15] Jigar is a Canadian citizen who traveled with his parents to India for what was intended to be a temporary visit. The fact that the parents once again separated when they were in India did not in my view change the habitual residence of this child or oust the jurisdiction of this court with respect to his custody and access. This is irrespective of what may have precipitated the parties’ separation in India.

[16] The applicant commenced a legal proceeding concerning guardianship and care of the child in India. While she indicates in her affidavit that the application was commenced in March 2013, that is prior to the commencement of this proceeding by the father in Ontario, an affidavit was filed suggesting that the action was not lodged with the Indian court until May 2013. There is no evidence to contradict the father’s assertion that he became aware of the Indian court action only when he was served with the mother’s motion in these proceedings.

[17] Nothing turns on when the proceedings in India were commenced. I am satisfied that the father did not at any time abandon his intention to have the child return to Ontario or to deal with the issue of custody of and access to the child in the courts of Ontario. There is no order of the Indian court in any event and it is questionable whether that court would assume jurisdiction in this case.

[18] I reject entirely the assertion by the mother’s counsel that the parties should defer to the jurisdiction of the courts of India because that is where the parties married, and where, for cultural reasons, they had turned to their respective families to attempt to address their matrimonial problems. The place of the child’s habitual residence is what determines jurisdiction over child custody and access disputes under Ontario law.

[19] In all the circumstances, I conclude that this court has jurisdiction to deal with custody and access of the child, Jigar Singh-Saini, and I direct the mother to return the child to Ontario within 60 days.

[20] The father indicated that he is prepared to pay the cost of the airline tickets for Jigar and his mother to return to Canada. If the unused return tickets from the intended return of January, 2013 are used by the end of July, there will only be a small fee to pay, however even if the mother does not return with the child until after the end of July, the father agrees to pay the cost of their flights. While the father is seeking primary residence of the child, in my view the interests of the child would best be met if Jigar were to reside with his mother at least on a temporary basis until the matter can be brought back before the court. The child has been living with his mother without contact with his father for several months and in view of his age and circumstances, it would be difficult and disruptive to the child to separate him from his mother at this time. The mother has family in Ontario, including a brother who is a student in Waterloo. She should be able to find accommodation, at least on a temporary basis. The father has indicated that he is prepared to pay child support. In accordance with the Guidelines that amount is $396 per month. The father is also prepared to pay spousal support in an appropriate amount having regard to his annual income of $43,000.00. I fix the amount of spousal support at $800 per month. Both child and spousal support are payable commencing August 1, 2013.

[21] Assuming that the mother returns to Canada to live here, the child shall have his primary residence with the mother and the father shall have liberal access. In the event that the mother chooses to remain in India, she must make arrangements for the child to be returned to Canada in which case the child will have his primary residence with the father. This order, except for the provision relating to jurisdiction, is subject to review upon the application of either party once the child is present in Ontario. If further directions are required I may be spoken to.

[22] Order to go in the terms of this endorsement. By agreement between the parties there will be no costs of this motion.

K. van Rensburg J.

DATE: July 10, 2013

COURT FILE NO.: FS-13-77328-00
DATE: 20130710
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GOBIND SINGH v. SONICA SAINI

BEFORE: K. van Rensburg J.

COUNSEL: Charles Mota, for the Applicant
Amanpreet Nagpal, for the Respondent

ENDORSEMENT

K. van Rensburg J.

DATE: July 10, 2013