Vakharia v. Vakharia, 2020 ONSC 6031

COURT FILE NO.: FS-19-00000292-00

DATE: 2020 10 05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Harshit Vakharia v. Hirali Vakharia

BEFORE: D. E. Harris J.

COUNSEL: Amanpreet Singh Nagpal for the Applicant Harshit Vakharia

Subramanyam Narasimhan for the Respondent Hirali Vakharia

HEARD: October 1, 2020 by Zoom Conference

E N D O R S E M E N T

1The Applicant father makes application for an order that the Respondent mother be required to bring their four-year old daughter back from India before December 31, 2020 and, once they arrive, asks for equal custody. The mother’s position is that she agrees the child should be returned to Canada but that it should wait until the COVID situation abates and circumstances become more conducive to travel.

2The couple’s daughter Aangi Harshit was born March 11, 2016 in India. The couple moved to Canada on May 18, 2017. The marriage was a somewhat troubled one. The father counts the difficulties as beginning when the mother’s parents arrived in Canada in April of 2019 and took up residence in the couples’ basement.

3It was on September 6, 2019 that the mother flew to India with the child. Her parents accompanied them. They flew on one-way tickets. In her affidavit, the mother claims that the father was a poor parent, never bonded with the child, has a short temper and emotionally abused the mother. The precipitating factor which led her to leave Canada was an incident in which the applicant choked his daughter and threatened to kill her.

4The mother does not dispute territorial jurisdiction. In my view, jurisdiction is established: see Section 22(1) and (2) of the Children’s Law Reform Act R.S.O. 1990, c. C.12. Furthermore, although the mother argues that this motion is not urgent within the meaning of Rule 14 (4.1) of the Family Law Rules, I disagree.

5In Rosen v Rosen, 2005 480 (ON SC), [2005] O.J. No 62 (S.C.J.), Wildman J. quoted with approval a definition of urgency used by Belch J. in Hood v. Hood, 2001 28129 (ON SC), [2001] O.J. No. 2918 (S.C.J.):

… an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference.

(Emphasis Added)

6The mother’s unilateral taking of the child was equivalent to an abduction. The status quo ought to have been maintained: Madill v. Madill, 2014 ONSC 7227, [2015] W.D.F.L. 756 (Ont. S.C.J.) at para. 31; Mott v. Green, 2020 ONSC 3761 (Ont. S.C.J.) at paras. 38-39. Urgency is demonstrated.

7The mother agrees that she must come back to Canada with the child but says that return at this time is worrisome because of COVID. She cites multiple hardships: the COVID situation in India is poor, the travel from her residence to the nearest airport is 8-9 hours, and a flight to Canada may be as long as 35-40 hours with multiple transfers. This raises the risk for her and her daughter.

8Risk from COVID is real and frightening. But there are several factors which reduce the risk. The order sought by the applicant father is that the child be returned by December 31, 2020, three months from now. This will allow careful planning both to get to the airport and to book flights. Second of all, the mother is a health care professional and will be able to take all the necessary precautions to protect her and her daughter.

9The mother’s complaint about travelling during COVID and the threat posed to her and her child would be more credible if she had not unilaterally and wrongfully taken the child to Indian more than a year ago. In sum, the best interests of the child under Section 24(2) of the Children’s Law Reform Act R.S.O. 1990, c.C.12 require that she be returned to Canada.

10The applicant also requests interim shared custody with equal shared time once the child is returned by the mother. The respondent mother, as mentioned above, makes disturbing allegations of abusive behaviour by the applicant directed towards both her and the child. Some of the allegations are of a nature to instill doubt about the substance of the complaints. For example, it is said that the applicant did not send birthday gifts for the child and refused to visit them in India. That, in the circumstances, sounds somewhat trivial. On the other hand, there are indications that the applicant has been frequently inconsistent in calling and speaking to her daughter when he says he is going to.

11After over a year away from the father and given the allegations of abuse made by the mother, it would be incautious to order equal shared time. Furthermore, the history and the fact the child and the respondent mother are not now in Canada counsel against the making of a custody or access order which would only be effective sometime in the future. No alternative to equal custody has been proposed. In the circumstances, I believe the best approach is to dismiss this aspect of the application. It is hoped that arrangements can be made with the assistance of counsel for reasonable access and custody in favour of the applicant. If not, the court will again have to be involved. That should be avoided if at all possible.

12These orders will be made:

1. An order that the respondent mother shall return the child Aangi Harshit Vakharia, born March 11, 2016 to the jurisdiction at her own cost on or before December 31, 2020.

2. An order that the respondent mother shall disclose the return flight details to the applicant father.

3. An order that neither party shall remove the child Aangi Harshit Vakahria from the jurisdiction once returned.

4. An order that neither party will speak negatively of the other parent or discuss the ongoing litigation.

13Given the divided success, there will be no costs order.

Harris J.