COURT FILE NO.: FS-20-98588-0000

DATE: 2022-06-17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

GUNJIT KAUR WARAICH

Applicant

and -

ASHWANI KUMAR WARAICH

Respondent

Counsel:

S. Samra, for the Applicant

M. Newton, for the Respondent

HEARD: June 2, 2022

REASONS FOR DECISION

Daley, J.

[1] The applicant brought a motion for several forms of relief which in summary are as follows: (a) financial disclosure; (b) production of an appraisal of the value of the matrimonial home; (c) leave to obtain a Canadian passport for the parties’ child Gurleen Waraich (“Gurleen”), who was born in Canada on January 28, 2020 and leave to travel with the child to India in the fall of 2022 for approximately six to eight weeks; and (d) an order severing the divorce from all other corollary relief.

[2] The parties have resolved the issue relating to the production of an appraisal of the matrimonial home.

[3] As there is evidence that the respondent father has been and is paying child support based on his disclosed income, and the respondent raised no issue as to the severance of the divorce from the corollary relief sought, an order shall issue severing the divorce.

[4] As to documentary disclosure, unfortunately the record submitted on this motion is far from clear as to whether the respondent has produced all relevant and requested disclosure. Not only did the record not provide adequate insight into what documents have been requested and produced, counsel were unable to even agree on what documents have in fact been produced thus far.

[5] Given the inadequate and confusing record with respect to documentary disclosure, it is impossible for me to make any meaningful order on disclosure given the apparent inability of counsel to even agree upon the most basic facts. Without prejudice to the applicant renewing her motion for disclosure, I order that counsel make use of a device that has fallen out of use in recent years i.e. telephone and arrange a teleconference to go over the requested productions and what, if anything remains outstanding. This aspect of the motion was a pointless waste of time for all concerned. There does not appear to be a real dispute on what documents have been requested but rather simply what documents have been turned over in response to those requests and whether the requests being made on this motion are in fact supplementary requests following documentation provided.

[6] Clearly the most important head of relief on this motion related to the applicant’s request for leave to obtain a passport for Gurleen and permission to travel with the child to India.

[7] The respondent opposes the applicant’s request allowing her to apply for and hold a passport on behalf of the child and he also opposes her request for leave to travel with the child to India.

[8] In order to properly consider this aspect of the applicant’s motion, the background leading up to her requests must be considered.

[9] The parties were married on October 3, 2016 and separated on July 11, 2020.

[10] The applicant came to Canada pursuant to a sponsorship by the respondent and upon arriving in Canada the parties lived with the respondent’s parents.

[11] The applicant has a grade 12 education from India and has never been employed in Canada.

[12] Following the parties’ separation and the applicant moving from the respondent’s parents’ home, she lived briefly with her uncle in Brampton and thereafter moved to a shelter with her child.

[13] The respondent has paid child support pursuant to a temporary, without prejudice, order of February 10, 2021.

[14] In October 2021, the applicant requested that the respondent consent to her obtaining a passport for their child, however his consent was not provided.

[15] The respondent offers evidence in response to the motion indicating that he has been exercising parenting time three hours each Saturday and further indicates that he seeks to increase his parenting time. In his responding affidavit sworn May 24, 2022, he sets out a schedule of increased parenting time which he hopes will be implemented. No cross motion was brought by the respondent seeking any change to the current parenting time allocated to him.

[16] The respondent in his evidence expresses a concern that the applicant wishes to remove the child from Canada and not return. He confirms that she has no employment in Canada, no assets and no immediate family to whom she is closely connected. He further expresses concern about risk that the child may contract COVID-19 given that she is a very young and unvaccinated child.

Analysis:

[17] Fundamental to the analysis of the applicant’s motion relating to the passport and her request for permission to travel with the child is clearly the best interests of the child and whether they would be served by granting such relief.

[18] The applicant’s connection with Canada is very tenuous.

[19] She has offered several indicia of her good-faith intentions and in particular her plan to return to Canada with the child, if she is allowed to travel with her.

[20] The applicant’s evidence as to her intention to return to Canada, as well as her proposed security terms that would ensure the safe return of the child include:

(a) she has applied for Canadian citizenship;

(b) she acknowledges that were she to travel to India and not return the child she may possibly be in contempt of court;

(c) she proposes that, although India is not a signatory to the Hague Convention, for the purposes of this motion she would agree that the Hague Convention is applicable in this case;

(d) the applicant would provide to the respondent contact information so that he can engage in Skype access with the child while she is in India;

(e) she proposes that in the event the child was not returned she will be deemed to have the child in her care as a result of a wrongful retention of the child contrary to the Hague Convention, so as to allow the respondent to proceed with a Hague Convention proceeding in order to seek the return of the child to Canada.

[21] The assessment of a motion of this type is most fact specific and in this case the very young age of the child, although not determinative of the question, certainly militates against granting the applicant’s motion.

[22] The separation of this child from the respondent for six and potentially eight weeks is another important factor that must be considered when determining the best interests of this child. Were the child somewhat older and able to enjoy and remember a trip such as the type proposed, where she would interact with her distant family, the applicant’s request would be far more in the interest of the child than is present at this time.

[23] As noted by Pazaratz J., in his decision in Mahadevan v. Shankar, 2010 ONSC 5608 at para. 12, the real issue is not necessarily to the extent of the benefit of the travel to the child but the nature and extent of the risk that the child may not be returned despite the assurances of the applicant.

[24] It is most notable that the applicant in her Application includes as one of her heads of relief at paragraphs 3 and 4 temporary and permanent orders that she be at liberty to obtain a passport for the child and be at liberty to travel “or move” with the child without the consent of the respondent. Clearly, her intention as expressed in her Application leads one to conclude that she ultimately will seek to leave Canada with Gurleen.

[25] Another consideration that militates against granting the applicant’s motion is that she has not put forward any plan as to the proposed trip to India in the fall of 2022. There is no evidence as to the exact time frame over which the trip will take place, where she will be residing with the child, and what family members, if any will be residing with her and the child. Absent this evidence there is nothing before the court upon which the safety and welfare of the child can be assessed. Furthermore, the absence of this evidence enhances the concerns relating to circumstances where the applicant fails to return the child. It would leave the respondent and this court with no information as to exactly where this child was taken, other than India.

[26] The fact that India is not a signatory to the Hague Convention is also a very significant consideration for this court. In the event the child was not returned as promised by the applicant, her proposal that she would be deemed to be bound by the terms of the Hague Convention is of absolutely no value to this court nor to the respondent. These parties cannot simply by an agreement impose the Hague Convention on an Indian court or government authorities. Such an agreement would be completely unenforceable.

[27] Furthermore, the applicant’s application for Canadian citizenship is only one piece of evidence that might favour her request on this motion, however her very tenuous connection with Canada, lack of employment, lack of assets and no community of family within Canada all militate against granting her motion to remove this very young child to India.

Conclusion:

[28] An order shall issue in the following terms:

(a) the applicant’s motion as it relates to documentary production is adjourned sine die in order to allow counsel to consult with respect to the documents requested and the productions delivered thus far;

(b) the applicant’s motion relating to the production of an appraisal of the value of the matrimonial home need not be addressed as this has been resolved by the parties;

(d) the applicant’s motion with respect to obtaining a passport for the child and for leave to travel to India with the child is dismissed, without prejudice to a future motion upon a satisfactory evidentiary record.

[29] As to costs, if counsel cannot come to an agreement on the costs of this motion, counsel for the respondent shall deliver brief submissions of no longer than two pages, along with a costs outline, within 15 days and counsel for the applicant shall deliver similar submissions within 15 days thereafter.

Daley, J.

Released: June 17, 2022

COURT FILE NO.: FS-20-98588-0000

DATE: 2022-06-15

ONTARIO