COURT FILE NO.: FC-19-2027
DATE: 2021/02/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SUMMIE NARULA
Applicant
– and –
HARMANJEET KHERA
Respondent
Cynthia Squire, for the Applicant
Michael Rappaport, for the Respondent
HEARD: December 8, 2020 (by videoconference)
DECISION
parfett J.
[1] The Applicant filed an application pursuant to the Divorce Act[^1] and the Children’s Law Reform Act[^2], requesting a divorce, custody of and access to the child of the marriage, child support and equalization of family property.
[2] This motion is a determination of an issue, specifically whether the Superior Court of Ontario has jurisdiction in relation to the issue of custody and access of the couple’s one child.
[3] Both parties agree that the issues of equalization, the validity of a separation agreement and child support should be heard by this court. Finally, the parties agree that the divorce proceeding is to be severed from the corollary relief.
Background
[4] The parties were married on September 13, 2016 in Ottawa and separated on January 1, 2019. There is one child of the marriage – Manvir Singh Khera (DOB September 10, 2017).
[5] The Applicant was born in Canada to parents of East Indian descent. The Respondent was born in India and came to Canada to study in December 2014. The Applicant’s father and the Respondent’s parents were distantly related and knew one another. When the Respondent came to Canada, he contacted the Applicant’s father. The Applicant and the Respondent met when he came to visit the Applicant’s family. Shortly after, a marriage was arranged between the parties.
[6] There was a civil ceremony in Ottawa in September 2016, followed by a religious ceremony in India in October of the same year.
[7] The Applicant suffers from significant mental health issues. She has been diagnosed with depression, anxiety and borderline personality disorder. As a result of her issues, the Applicant has been hospitalized on several occasions. The Applicant’s pregnancy was high risk and after the birth of their son, the Applicant suffered from post-partum depression. This problem affected her ability to parent her son.
[8] The Applicant began working evenings at a McDonald’s Restaurant when her son was a few months old. The parties disagree on why the Applicant started working so soon after the birth of her child. According to the Applicant, it was because the Respondent was concerned about money and pressured her to go out to work. According to the Respondent, it was because the Applicant wanted to work instead of caring for their son.
[9] In early 2018, the Applicant’s mental health deteriorated. A trip was planned to New Zealand where the Respondent had a sister. The parties disagree whether the Applicant was to be part of the trip. The Respondent stated that the trip was designed to be a break for the whole family as well as an opportunity for his family to meet his son. The Applicant indicated that only the Respondent and Manvir were slated to go on the trip and she went only because her father paid for her ticket.
[10] The Respondent’s mother was in New Zealand when the parties arrived. According to the Applicant, a decision was made that Manvir should go to India with his paternal grandmother for a visit. She signed a consent for Manvir to travel with his paternal grandmother, but she stated she was coerced into doing so.[^3] The Applicant indicated that the Respondent made it clear to her that Manvir would come home to Ottawa after his visit. No end date for the visit was ever established.
[11] Both parties agree that the purpose of the paternal grandparents taking custody of Manvir was so the parties could work and focus on their finances. They do not agree on whether this decision was necessary. According to the Respondent, the Applicant’s mental health issues meant he had to take time off work in order to care for Manvir. They had a house and a mortgage, and he needed to work full-time given the Applicant could only manage part-time work. The Applicant stated they did not have any financial problems.
[12] An additional problem according to the Respondent was that the Applicant was physically abusive towards Manvir. He did not report his concerns to the Children’s Aid Society or to police. Instead, he asked his parents to care for Manvir. The Applicant denies she was physically aggressive with Manvir.
[13] Manvir has lived with his paternal grandparents since March 1, 2018.
[14] Between November 2018 and February 2019, the marriage deteriorated significantly. The emotional turmoil in the marriage negatively impacted the Applicant’s mental health. There were numerous calls to the Ottawa Police Service and the Applicant was hospitalized for suicidal ideation and emotional outbursts.
[15] In December 2018, the Respondent advised the Applicant he wanted a divorce. The Respondent’s parents came to Canada in January 2019 and they brought Manvir with them. The Applicant stated she believed that Manvir had come home permanently. The Respondent indicated that Manvir was in Canada only for a visit.
[16] In February 2019, the parties signed a separation agreement prepared by the Respondent’s lawyer.[^4] Neither party received any independent legal advice prior to signing the agreement. There is a dispute over the validity of this agreement given the Applicant’s emotional state at the time of signing.
[17] The agreement gave sole custody of Manvir to the Respondent and his parents returned to India taking Manvir with them. The agreement also stated that Manvir would remain in India until such time as the Respondent found new employment that would allow him to care for Manvir. Access to the Applicant was at the Respondent’s discretion and was to be supervised.
[18] This Application was filed in October 2019.
Legal Principles
[19] Section 4 of the Divorce Act provides as follows:
(1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if
(a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or
(b) both former spouses accept the jurisdiction of the court.
[20] Section 16 states,
(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
[21] The Children’s Law Reform Act states at s. 22 as follows:
(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) 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) 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.
[22] With respect to s. 22 of the CLRA, the Ontario Court of Appeal held in Dovigi v. Razi, as follows:
The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.
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.
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.
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.
Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA.[^5]
[23] In Sanders v. Aerts,[^6] the mother, who had custody, took the child to Switzerland. The father had agreed to the move because the mother had indicated the move was temporary. Despite the fact the court found that the mother acted in bad faith and had never intended to return to Canada, the court found that the child’s habitual residence was Switzerland and declined jurisdiction.
[24] The Applicant relies heavily on the case of Hsu v. Liu.[^7] However, the facts in that case are significantly different than those in the case at bar. In that case, there was no agreement that the grandparents would raise the child in Taiwan. Instead, the child’s stay in Taiwan was always described as a visit and promises were made to the mother that the child would return to Canada on specified dates that then never materialized.
Positions of the parties
[25] Neither party raised the question of the jurisdiction of the Divorce Act in this case. However, it must be noted that the application was brought pursuant to both the Divorce Act and the CLRA.
[26] The Applicant argues that Manvir has been abducted from Canada. She states she did not consent to his removal from this jurisdiction and any purported consent was coerced. Alternatively, she asserts that if she did agree to his removal then it was on the basis that such removal was strictly temporary.
[27] The Respondent asserts that the Applicant agreed to Manvir moving to India with his parents. He denies any coercion and indicates that the Applicant was emotionally stable at the time she consented to Manvir’s move. He agrees that it was intended that Manvir live with his parents on a temporary, if indefinite, basis.
Analysis
[28] The first issue to be determined is whether this court has jurisdiction pursuant to the Divorce Act.
[29] In Metawabin v. Abraham[^8], the court held that Parliament intended that a court in a province dealing with an application for divorce is empowered to provide for custody and support of a child of the marriage, whether or not that child is physically present in that province. In addition, the case stands for the proposition that a court having jurisdiction in a divorce proceeding may adjudicate with respect to custody of a child, regardless of whether custody was claimed in the application.
[30] If this case does not fall within the jurisdiction of the Divorce Act, then it turns on the interpretation of s. 22 of the CLRA.
[31] Where the parties are pursuing a divorce, the Divorce Act and its provisions pertaining to jurisdiction take precedence over the Children’s Law Reform Act.[^9]
[32] The Divorce Act provides that a court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse “has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”[^10] Corollary relief proceedings, including custody orders, can be heard by a court in a province if “(a) either former spouse is ordinarily resident in the province at the commencement of the proceeding, or (b) both former spouses accept the jurisdiction of the court.”[^11]
[33] The Divorce Act further provides that any court of competent jurisdiction that meets the criteria listed at ss. 3(1) and 4(1), may “make an order respecting the custody of or access to any or all children” of the marriage, while considering the principles of the best interest of the child and of maximum contact.[^12]
[34] As such, when a case pertains to an application under the Divorce Act, it is not the habitual residence of the child which determines the court’s jurisdiction, nor the other criteria listed in s. 22(b) of the CLRA, but rather the ordinary residence of the spouse.[^13]
[35] However, if the matter pertains exclusively to the CLRA, then the provisions of s. 22 and following apply to the question of jurisdiction.
[36] In the present case, s. 22(1)(b) of the CLRA does not apply. With respect to that subsection, the Court of Appeal has held that ‘the only way the Superior Court could exercise jurisdiction was if all the criteria in s. 22(1)(b) are met.’[^14] That is not the case in the present matter. The child was not present in the jurisdiction at the commencement of these proceedings in October 2019.
[37] I note, however, that all the other criteria of s. 22(1)(b) are met. The evidence concerning the child’s best interests is here in Ontario because his parents live here, there is no other application for custody and access pending in any other jurisdiction, there is no extra-provincial order in respect of custody, the child has a real and substantial connection with Ontario given both his parents reside here and on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
[38] Section 22(1)(a) may apply depending on whether the child can be found to have been habitually resident in Ontario. ‘Habitual residence’ is a question of fact to be decided based on all the circumstances. [^15] Section 22(2) of the CLRA states that a child is considered to be habitually resident in the place where he resided with both parents or where he resided with a person other than a parent on a permanent basis for a significant period of time, whichever last occurred.
[39] Manvir lived with both his parents in Ontario until the point where his parents decided to place him in the care of his paternal grandparents. Both the consent signed by the parties and the separation agreement make it clear that this arrangement is not permanent. It is temporary, albeit long-term. Therefore, s. 22(2)(a) applies as the last place that Manvir can be considered to have been habitually resident is with both his parents in Ontario.
[40] Section s. 22(3) does not apply. For that section to apply, the Applicant must demonstrate that the child was removed from the jurisdiction without her consent, that she did not acquiesce in the removal, or there was no undue delay in the commencement of these proceedings.
[41] Certain findings in this matter are not disputed. They are as follows:
• Manvir has lived full-time in India with his paternal grandparents since March 2018;
• Manvir is now 3 years old;
• Both parents reside in Canada; and
• The separation agreement assigns sole custody of Manvir to the Respondent with access to the Applicant.
[42] The critical issue therefore is whether the Applicant either consented or acquiesced in the decision that Manvir would move to India.
[43] To that end, certain evidence is important.
[44] The Applicant testified that she did not consent to Manvir moving to India. On the other hand, she signed a consent. That consent reads as follows:
We Harmanjeet Khera and Summie K. Narula are allowing our son Manvir Singh Khera to live with his Grandfather, Mr. Harjit Singh Khera and Grandmother, Mrs. Harjeet Kaur in India for his upbringing since we both would like to work full-time and since we can’t afford daycare right now so we are giving permission to his grandmother and grandfather to look after him, while we work and save up for our child’s future in Canada.[^16]
[45] The Applicant indicated she was manipulated into signing this consent. However, she agreed that she had the capacity to sign the consent. She also stated that while she remained unhappy with her son’s absence, she was working as was the Respondent and it appeared to her that her marriage was sound. As her marriage deteriorated, so did her mental health.
[46] In February 2019, she was hospitalized. As soon as she left the hospital, she was asked to sign a separation agreement and she did so. As noted earlier, that separation agreement gave sole custody of Manvir to the Respondent. It also indicated that ‘custody and access can be reviewed six months after signing this agreement if Summie’s medical condition improves or is under control’.[^17]
[47] The Applicant continued her treatment after signing this agreement.
[48] In July 2019, the Applicant hired a lawyer to assist with the sale of the matrimonial home and to negotiate a division of the family assets. Custody and access did not form part of these negotiations. In October 2019, the negotiations broke down and this application was started.
[49] The signed consent indicates that it was intended by the parties that the custodial arrangement would be temporary, but of indefinite duration. Although no specific date for Manvir’s return was ever established, it is clear from the consent that it was always contemplated that Manvir would return to Canada as soon as the parties decided they had the financial wherewithal to care for their child. The parties carried out their part of the bargain; they both worked while Manvir lived in India.
[50] When the separation agreement was signed in February 2019, it reiterated that the custodial arrangement whereby Manvir was to live with his paternal grandparents, would continue until the Respondent was able to care for Manvir, at which point Manvir would return to Canada. Once again, no specific return date was established.
[51] The validity of the separation agreement is being disputed by the Applicant. However, for the purposes of this motion, it is assumed to be valid.
[52] Importantly, the Applicant did not initially dispute the custody and access arrangements of the separation agreement. Instead, the dispute focused on the financial arrangements in the agreement. It was not until seven months after the agreement was signed that the Applicant brought this application.
[53] In all the circumstances, I find that the Applicant acquiesced in the decision that Manvir would live in India and be cared for by his paternal grandparents.
[54] However, as noted earlier, the provisions of the Divorce Act supersede those of the CLRA and accordingly, this court has jurisdiction over the corollary relief given both parties are resident in Ontario. Even if that were not the case, the last place that the child could be found to be habitually resident is with his parents in Ontario. Consequently, this court has jurisdiction to deal with the issues of custody and access.
Costs
[55] The costs of this motion are reserved to the judge determining the final order.
The Honourable Madam Justice Julianne Parfett
Released: February 2, 2021
COURT FILE NO.: FC-19-2027
DATE: 2021/02/02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SUMMIE NARULA
Applicant
– and –
HARMANJEET KHERA
Respondent
DECISION
Parfett J.
Released: February 2, 2021
[^1]: R.S.C. 1985, c. 3 (2nd Supp.). [^2]: R.S.O. 1990, c. C.12. [^3]: Exhibit #E to Respondent’s affidavit. [^4]: Exhibit #F to Applicant’s affidavit. [^5]: 2012 ONCA 361 at paras. 9-13. [^6]: 2014 ONCJ 20 [^7]: 1999 CarswellOnt 2651 (Ont. SCJ) [^8]: [2007] O.J. No. 326 (SCJ) [^9]: See s. 27 of the CLRA. [^10]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 3(1). [^11]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 4(1). [^12]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16(1), (8) & (10). [^13]: See Wang v. Lin, 2013 ONCA 33, 29 R.F.L. (7th) 1. [^14]: Murray v. Ceruti, 2014 ONCA 679 at para. 24. [^15]: Korutowska-Woof v. Wooff, 2004 5548 (ON CA). [^16]: Exhibit #E to Respondent’s affidavit [emphasis added]. [^17]: Exhibit #F to Applicant’s affidavit at para. 3.5