Court File and Parties
Court File No.: FS-15-921 Date: 2016-04-12 Ontario Superior Court of Justice
Between: Vaibhav Mehta, Applicant And: Hiral Gandhi, Respondent
Counsel: Faryal Rashid, Counsel for the Applicant Iain Sneddon, Counsel for the Respondent
Heard: April 6, 2016
Before: The Honourable Mr. Justice D.J. Gordon
Reasons for Decision
[1] The threshold issue in this custody case involves jurisdiction, Ontario or India. For the reasons that follow, I conclude the court in India has sole jurisdiction to address matters involving the child. In result, father’s motion and application are both dismissed.
Background
[2] Vaibhav Mehta is 31 years of age. He resides in Kitchener with his parents. Mr. Mehta and his parents emigrated from India in or about 2007. Mr. Mehta is employed by Blackberry in Waterloo as an analyst.
[3] Hiral Gandhi is 27 years of age. She resides in Surat City, Gujarat State, India. Ms. Gandhi resides with her son, Manomay Mehta, her parents and grandparents. Ms. Mehta is a physiotherapist. She is presently enrolled in a Master’s program in her field at a college in India, as well as working at a local clinic.
[4] The parties were married in India on December 9, 2012. This was an arranged marriage. Mr. Mehta returned to Canada shortly thereafter. Ms. Gandhi remained in India until after her brother’s wedding. She arrived in Canada on June 19, 2013, sponsored by Mr. Mehta.
[5] The parties initially resided in an apartment with Mr. Mehta’s parents. The two couples would subsequently purchase a single family residence together, in March 2014. Title remains in the four names. No property claims are presented in this case.
[6] Manomay Mehta was born April 11, 2014.
[7] On February 2, 2015, Ms. Gandhi and Manomay travelled to India to introduce the child to his family. Mr. Mehta’s mother left on a similar trip on March 13, 2015. Mr. Mehta and his father arrived on April 4, 2015. Mr. Mehta’s parents own an apartment in Mumbai, India, several hours distance from Ms. Gandhi’s family residence in Surat City.
[8] The initial plan was that the parties, their son and Mr. Mehta’s parents would return to Canada together on April 26, 2015. Mr. Mehta and his parents left India on that date. Ms. Gandhi and Manomay remained behind.
This Litigation
[9] Mr. Mehta commenced this proceeding by application issued November 19, 2015, seeking an order for: (a) custody of Manomay; (b) requiring Ms. Gandhi to return the child to Kitchener, Ontario; and (c) police assist to return child.
[10] By motion, without notice, Mr. Mehta sought similar relief, along with the procedural claims, on an urgent basis. Sloan J. declined to grant the relief on the basis it was not an urgent matter. He directed the documents be served on Ms. Gandhi.
[11] Following service of the documents, Ms. Gandhi retained counsel. Her affidavit in response to the motion was served. An answer was not. Mr. Mehta’s reply affidavit followed. Counsel arranged for this matter to be heard as a long motion, quite appropriately in the circumstances.
Proceedings in India
[12] Ms. Gandhi commenced a proceeding in Surat City, India, by petition dated December 15, 2015. She seeks an order appointing her as the sole guardian with sole custody of Manomay. Mr. Mehta was served with the documents. The proceedings, as I understand it, are in a period of adjournment. No orders have yet been granted.
[13] Of some interest, Ms. Gandhi also filed a criminal complaint with the police in Surat City regarding the alleged conduct of Mr. Mehta and his parents. The allegations include harassment and demands for more dowry. I am advised dowry is a criminal offence in India pursuant to the Dowry Prohibition Act. Mr. Mehta has retained a lawyer in India with respect to these matters. It appears no action is being taken at this time.
Relationship
[14] The affidavits of the parties speak at great length regarding problems in their relationship. The matters discussed are not of particular importance on the issue of jurisdiction. The parties agree there is conflict between the two families and there were problems in their relationship. It appears these issues commenced either before or shortly after marriage.
Separation
[15] As stated above, Mr. Mehta and his parents returned to Canada on April 26, 2015. Ms. Gandhi and Manomay remained in India.
[16] Numerous dates are suggested as to when separation occurred. There is an evidentiary dispute. The dates are as follows: (i) April 26, 2015 Ms. Gandhi says there was an agreement to work on relationship problems but that Mr. Mehta then disagreed and chose to return to Canada, leaving her and Manomay behind. Mr. Mehta denies this suggestion, saying there was an agreement Ms. Gandhi and Manomay would extend their stay in India until August 17, 2015, referring to an amended electronic plane ticket in this regard. (ii) May 19, 2015 The parties communicated regularly, often daily, by telephone between April 26, 2015 and May 19, 2015. Ms. Gandhi says they argued. She reports the May 19, 2015 conversation escalated the conflict. Ms. Mehta simply says Ms. Gandhi did not inform him that they were separated. (iii) July 15, 2015 Ms. Gandhi decided to continue her education in India. She sent an email to Mr. Mehta on July 15, 2015 asking him to send her academic documents, including degrees and transcripts. He responded, questioning why those documents were needed. Ms. Gandhi indicates a telephone conversation followed, during which she explained to Mr. Mehta why she was not returning to Canada. Mr. Mehta denies Ms. Gandhi informed him of the separation. The requested documents were delivered to Ms. Gandhi shortly thereafter. Mr. Mehta says he asked Ms. Gandhi to return to Canada in August so that they could sort out their differences. (iv) August 11, 2015 Mr. Mehta sent to Ms. Gandhi an email regarding sale of their matrimonial home. He asked her to sign a power of attorney for this purpose. Ms. Gandhi did not respond. Mr. Mehta says the house, owned with his parents, was to be sold so that he and Ms. Gandhi could acquire their own residence. (v) August 15, 2015 Ms. Gandhi reports Mr. Mehta calling her father on August 15, 2015 to inquire if Ms. Gandhi and Manomay were returning to Canada on August 17, 2015. In a separate affidavit, Bhadresh Gandhi confirms this conversation, saying he informed Mr. Mehta his daughter was staying in India as there had been no solution to their problems. Mr. Mehta says this conversation never happened. (vi) August 17, 2015 Ms. Gandhi and Manomay did not return to Canada. Amongst other matters, Ms. Gandhi indicates she was never provided with plane tickets. Mr. Mehta refers to the amended electronic ticket, previously mentioned, the amendment being made when he was in India on April 22, 2015. He says Ms. Gandhi was well aware the tickets were rescheduled. (vii) November 1, 2015 There was some communication between the parties after August 17, 2015. Mr. Mehta reports Ms. Gandhi avoiding him. Ms. Gandhi says arguments continued and, in result, she told Mr. Mehta to communicate only through her father. She also refers to again advising Mr. Mehta she was staying in India. To do so, Manomay’s visa had to be extended. Mr. Mehta, she says, refused but she was able to obtain the extension on her own.
[17] Mr. Mehta arranged for a birthday present to be delivered to Ms. Gandhi on October 5, 2015. In late October 2015, Mr. Mehta had a cousin deliver toys and clothes for Manomay to Ms. Gandhi. He says she refused to accept the gifts.
[18] By November 1, 2015, Mr. Mehta reports having determined a separation had occurred.
Father and Son
[19] While each party blames the other, it appears Mr. Mehta has had little contact with Manomay since April 26, 2015.
Principles of Law
[20] Jurisdiction is addressed in sections 22 and 25, Children’s Law Reform Act, as follows:
- (1) JURISDICTION - 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) Although the child is not habitually resident in Ontario, the court is satisfied, i. That the child is physically present in Ontario at the commencement of the application for the order; ii. That substantial evidence concerning the best interests of the child is available in Ontario; iii. That no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident; iv. That no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario; v. that the child has a real and substantial connection with Ontario; and vi. That, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
(2) HABITUAL RESIDENCE - 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) ABDUCTION - t he 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.
- DECLINING JURISDICTION - a court having jurisdiction under this Part in respect of custody or access may decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario.
[21] In Dovigi v. Razi, 2012 ONCA 361, Juriansz J.A., at paras. 9-13, addressed “jurisdiction over custody disputes”, saying:
9 The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.
10 First, under s. 22(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is “habitually resident” in Ontario.
11 Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met.
12 Third, under s. 23, a court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in the Act.
13 Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA.
[22] Manomay was not physically present in Ontario when this case was commenced. In result, for this court to have jurisdiction, there must be a finding Manomay was “habitually resident” in Ontario at that time, as provided above in sections 21 (1)(a), (2) and (3). The court could still decline jurisdiction under section 25.
[23] Habitual residence was defined by Feldman J.A. in Korutowska-Wooff v. Wooff (2004), 5 R.F.L. (6th) 104, at para. 8, in the following manner:
8 The term “habitually resident” is not defined in the Convention. However, the English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of J. (A Minor) (Abduction: Custody Rights), Re, [1990] 2 A.C. 562 (U.K. H.L.), and R. v. Barnet London Borough Council (1982), [1983] 2 A.C. 309 (U.K. H.L.). See Chan v. Chow (2001), 199 D.L.R. (4th) 478 (B.C. C.A.) at paras. 30-34; Kinnersley-Turner v. Kinnersley-Turner (1996), 94 O.A.C. 376 (Ont. C.A.) at paras. 19-20. The principles that emerge are:
- the question of habitual residence is a question of fact to be based on all of the circumstances;
- the habitual residence is the place where the person resides for an appreciable period of time with a “settlement intention”;
- a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;
- a child’s habitual residence is tied to that of the child’s custodian(s).
[24] A party cannot establish a new habitual residence by surreptitiously removing the child to another province or country. A relocation by self-help will not establish jurisdiction. See: Carter v. Brooks (1990), 30 R.F.L. (3d) 53 (Ont. C.A.); and Mantyka v. Dueck, 2012 SKCA 109. However, where the other parent consents to the move, or takes no steps when made aware of the move, either agrees or acquiesces in the child moving, as provided in section 22 (2)(b), a new habitual residence is created.
[25] A temporary intention may become permanent with the passage of time. See: Balev v. Baggott, 2016 ONSC 55 (Div. Ct.); and Dorya v. Dorya, 2015 ONCJ 24.
Discussion and Analysis
(a) Preliminary Matters
(i) Case Conference
[26] Rule 14(4), Family Law Rules, prevents motions on substantive issues prior to a case conference. This provision does not apply to jurisdiction as such is a prerequisite to allowing the case to continue. If necessary, leave is granted to deal with this component raised in the applicant’s motion.
(ii) Objection on Evidence
[27] Mr. Sneddon raises a complaint with the reply affidavit of Mr. Mehta, saying it presents fresh evidence contrary to Rule 14(20). The impugned evidence pertains to the criminal complaint, or charge, in India and Mr. Mehta’s perceived risk in travel to that country. While the objection is valid, had such been communicated earlier to Ms. Rashid, I am certain she would have sought leave. Such would likely have been granted.
[28] Nevertheless, the evidence of Mr. Mehta is not persuasive. He is not qualified to opine on the law in India. Such evidence could only be presented from someone qualified, such as a lawyer in India. I am not persuaded a charge has been laid. Mr. Mehta’s evidence on this point is rejected.
(b) Habitual Residence
[29] I am confronted with a difficult issue where much of the evidence is in dispute. Findings of fact, however, are necessary, particularly as to the date of separation. To do so, I will rely on undisputed evidence with necessary interpretation.
[30] The uncontested facts, I find, are as follows: (i) Manomay was born on April 11, 2014. He resided with his parents, in Kitchener, from birth until February 2, 2015. (ii) There were problems or conflict in the parties’ relationship from the outset. Such were never resolved, despite involvement of extended family members. (iii) The parties agreed Ms. Gandhi and Manomay would travel to India on February 2, 2015, Mr. Mehta would join them in April 2015, with all three returning to Canada on April 26, 2015. (iv) Mr. Mehta returned on that date. The parties agreed Ms. Gandhi and Manomay would remain in India for a period of time. (v) Conflict had escalated by April 26, 2015 – and involved extended family members. (vi) On July 15, 2015, Ms. Gandhi asked Mr. Mehta to forward her academic documents. He complied. (vii) On August 11, 2015 Mr. Mehta requested Ms. Gandhi to execute a power of attorney so he could sell their matrimonial home. She declined to do so. The home does not sell. (viii) Ms. Gandhi and Manomay did not return to Canada on August 17, 2015. (ix) On October 5, 2015, Mr. Mehta sent a birthday gift to Ms. Gandhi in India. (x) In late October 2015, Mr. Mehta had a gift for Manomay delivered to Ms. Gandhi. She did not accept it. (xi) Mr. Mehta has had little contact with Manomay since April 26, 2015.
[31] It is unclear whether Ms. Gandhi was provided with the return tickets for August 17, 2015. Mr. Mehta simply says she was “well aware that the tickets were rescheduled”. Little, in my view, turns on this point.
[32] Ms. Gandhi asserts she informed Mr. Mehta she was not returning to Canada on several occasions. Mr. Mehta denies any such conversations occurred. Nevertheless, the aforementioned events ought to have made it clear that Ms. Gandhi was not returning to Canada. In my view, Mr. Mehta either had unrealistic expectations of a reconciliation or was wilfully blind to what was occurring.
[33] There is a strong argument to suggest the date of separation was April 27, 2015 when Mr. Mehta returned alone to Canada, however I am not persuaded the evidence is sufficiently clear to make that finding. I could find separation occurred by May 19, 2015 by accepting Ms. Gandhi’s evidence. Certainly, the conflict had escalated over time. Involvement of extended family members was not helpful. Perhaps it made it worse. Regardless, there can be no dispute, despite what Mr. Mehta says, that separation was announced on July 15, 2015. Why else would Ms. Gandhi want her academic documents? Mr. Mehta corroborates this by his subsequent conduct, including the request for power of attorney and delivering gifts.
[34] I am satisfied Ms. Gandhi had decided to separate from Mr. Mehta by May 19, 2015, if not sooner. I find, in the circumstances, such decision was communicated to him on July 15, 2015.
[35] The initial agreement was to visit in India and return to Canada on April 26, 2015. The visit was a temporary arrangement, Ms. Gandhi’s intention being to return. Her intention changed. She decided to stay. Ms. Gandhi and Manomay were living with her family. She had arranged health care for her son. The child established a pattern in the community with family and friends.
[36] I conclude, as above, Mr. Mehta was aware Ms. Gandhi and Manomay were not returning to Canada by July 15, 2015. He took no steps to challenge her decision until commencing this case on November 19, 2015. By then, it was too late. On the evidence, I find there was either consent, implied consent or acquiescence by Mr. Mehta to their remaining in India.
[37] Manomay is now 2 years of age. He has lived with his mother in India since February 2015 with little contact with his father. I conclude Manomay’s habitual residence is India. The court in India has sole jurisdiction to determine parenting and related issues. This court does not.
(c) Result
[38] For these reasons, the motion and application of Mr. Mehta are both dismissed.
[39] If the parties are unable to resolve the issue of costs, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days.
D.J. Gordon J.