Court File and Parties

COURT FILE NO.: FC-22-629 MOTION HEARD: 20220412 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Karan Bhadauria, Applicant AND: Caroline Hélène Côté, Respondent

BEFORE: Associate Justice Kaufman

COUNSEL: Jeremy Dolgin, Counsel for the Applicant Julie I. Guindon, Counsel for the Respondent

HEARD: April 12, 2022

Reasons for Decision

[1] The applicant father brings this motion to determine urgency under Rule 14(4.2) of the Family Law Rules [1]. The parties started dating in late 2018 and were never married. They are the parents of Meera Gwladys Bhadauria, who is just over 16 months old.

[2] The parties’ relationship deteriorated in July 2021. On August 4, 2021, the respondent advised the applicant by e-mail that she was grateful for all the good moments they had, that Meera deserved to have her parents on good terms, and that she wanted Meera to have a relationship with her father. After their separation, the parties attempted to negotiate a parenting agreement and attended mediation, but an agreement was never reached. The father alleges that the mother was trying to cut him out of Meera’s life, while the mother alleges that the father harassed, manipulated, and terrorised her.

[3] The mother alleges that starting December 2021, the father refused to continue with the supervised parenting time she was offering, and he never made a counteroffer to her offer to settle. She was not receiving child support and had no family in Canada. She decided to sell her house, and, on March 8, 2022, she moved to France with Meera without advising the applicant.

[4] The applicant seeks an order for the return of Meera to Ottawa with a police enforcement clause.

[5] I determine this motion to be urgent for the following reasons.

[6] It is well settled that child abductions are considered urgent under the jurisprudence. It is not disputed that Meera was, until March 8, 2022, ordinarily resident in Ontario. The applicant never acquiesced or impliedly consented to the respondent relocating with Meera to France. Moreover, he brought this motion with dispatch upon learning of the respondent’s relocation.

[7] Pursuant to s. 20(4) of the Children’s Law Reform Act [2], the applicant is entitled to parenting time with Meera until a separation agreement or order provides otherwise. Pursuant to section 39.3, the respondent was required to provide at least 60 days’ notice of her intention to relocate. Removing Meera from the country without advising the applicant strikes me as a particularly egregious form of self-help remedy. The respondent should have sought the applicant’s consent before relocating, but she acknowledges that she did not seek his consent because she knew that the applicant would refuse. Instead of bringing this issue before the Court to determine if her relocation was in Meera’s bests interests, she presented the applicant and the Court with a fait accompli. This Court has often held, in the context of motions for determinations of urgency, that self-help must be discouraged and admonished. [3]

[8] In Sandhu v. Kaur [4], this Court heard an urgent motion by a father for the return of a child from British Columbia. The mother in that case relocated with the child following allegations of family violence, which lead to criminal charges against the father. The father’s urgent motion was initially made ex parte and it was adjourned to be made on notice to the mother.

[9] Justice Fowler Byrne J. allowed the father’s urgent motion and ordered that the child be brought back to his place of habitual residence. The Court cited Laskin J.A.’s comments in Ojeikere v. Ojeikere [5], at para 16, that the policy behind discouraging child abduction and requiring a summary return to habitual residence reflects the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.

[10] In Martinez v. Stavenjord [6], the mother only provided the father with 20 days’ notice of her intended relocation to Nova Scotia. Justice Summers granted the father leave to bring an urgent motion to prevent the move, finding that the mother created a situation of urgency and that her short notice suggested a certain lack of regard for the father and his role in the child’s life. I reach the same conclusion in this case.

[11] Based on the foregoing, the Court orders that:

1. The applicant is granted leave under Rule 14(4.2) to bring an urgent motion before a case conference.
2. The applicant may serve and file his motion materials no later than April 14, 2022 at 5:00 p.m.
3. The respondent may serve and file her responding materials no later than April 22, 2022 at 5:00 p.m.
4. The applicant may serve and file a reply, if any, no later than April 26, 2022 at noon.
5. The motion is scheduled for 2 hours on April 28, 2022 at 2:00 p.m.
6. Costs of this motion are reserved to the motions judge.

Alexandre Kaufman Associate Justice Kaufman Date: April 12, 2022

Footnotes

[1] O. Reg. 114/99. [2] RSO 1990 c C.12. [3] See: Whittle v. Whittle, 2013 ONSC 769 (Ont. Sup. Ct.) at para 6; Skuce v. Skuce, 2020 ONSC 1881 (Ont. Sup. Ct.) at para 36. [4] 2020 ONSC 7308 (Ont. Sup. Ct.). [5] 2018 ONCA 372 (Ont. C.A.). [6] Unreported, Ottawa Court File number FC-21-1090.