Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Saurabh Malpani, Applicant
AND:
Divya Malpani, Respondent
BEFORE: Mohan D. Sharma
COUNSEL: Kenneth Younie, Counsel for the Applicant
Rajni Tekriwal, Counsel for the Respondent
HEARD: June 23, 2022
ENDORSEMENT
Background
1The applicant father filed an urgent motion on June 10, 2022. Among other things, the applicant seeks orders that a court in Ontario has jurisdiction to make orders with respect to the parties’ child of the marriage, Miraya Malpani (the “child”), born August 29, 2016, and for the apprehension and return of the child to the applicant’s care in Ontario, forthwith. The applicant alleges that the respondent mother travelled with the child to India on January 27, 2022 for a vacation with an intended return date of April 11, 2022. However, she did not return with the child to Toronto on April 11, 2022.
2On June 20, 2022, with no responding material filed by the respondent, I scheduled this motion for June 23, 2022.
3On June 22, 2022, the respondent’s counsel delivered an affidavit of her client, Divya Malpani, sworn June 21, 2022. The respondent, in her affidavit, confirms that she is in India with the child. Her affidavit speaks to the reasons why she had not yet delivered responding material and that this matter should be adjourned, notably because the respondent’s lawyer is scheduled to appear in another urgent matter this morning. The respondent’s affidavit states that legal proceedings have also been commenced in India on the same issues. There was no evidence in the respondent’s affidavit that disputed that the child’s habitual place of residence was in Ontario.
4I commenced today’s hearing at 9:50 am to afford the respondent’s counsel time to make preliminary arguments in this case.
5As a matter of procedural fairness and professional courtesy, I grant an adjournment of this motion to July 12, 2022, which date has been agreed upon by the parties. The motion shall be heard in 2 hours. The respondent shall serve and file responding motion material by July 5, 2022, and the applicant shall serve and file reply material by July 11, 2022. The sole issues for determination on the return of the motion will be a final ruling on the habitual place of residence, and whether an Order should issue for the return of the child to Ontario.
Jurisdiction and Habitual Residence
6For the reasons that follow, I make an interim, without prejudice finding, subject to variation by further order of this court, that the child is habitually resident in Ontario and that this court has jurisdiction to determine custody (now referred to as decision-making responsibility) and access (now referred to as parenting time) with respect to the child. I also explain why it is necessary and appropriate to make this interim ruling.
7Under s. 22(1)(a) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), a court in Ontario shall only exercise jurisdiction in making orders with respect to a child if the child is “habitually resident in Ontario at the commencement of the application for the order.” Subsection 22(2)1 of the CLRA defines habitual residence as the place where the child resided with both parents. Subsection 22(3) of the CLRA states that the removal or withholding of a child, without the consent of persons having decision-making responsibility, does not alter the habitual residence of the child unless there has been acquiescence or undue delay.
8The applicant has put forward facts in his affidavit which demonstrate that the child was habitually resident in Ontario. As the respondent has not had an opportunity to provide responding evidence, it would be procedurally unfair to rest my interim decision on his affidavit evidence alone.
9However, the applicant has attached as exhibits to his affidavit objective and compelling evidence which demonstrates that the child resided with both parents in Ontario and was habitually resident in Ontario, that the respondent and the child were to return to Toronto, Ontario on April 11, 2022, that the parties intended to reside with the child in Ontario in a newly purchased home in Ontario, and that there has not been acquiescence or undue delay in commencing this application. In particular,
a. There is evidence of an email chain between the parties and officials at the Toronto District School Board which confirms that the child was registered and in attendance at McKee Public School in Toronto, Ontario. Those email communications confirm that the parties had intended for the child to be in India briefly where she would receive online education, but that she would return to McKee Public School after the trip to India.
b. The applicant has filed evidence of an email exchange with a travel agent confirming that the respondent and the child would be flying to Delhi, India on January 27, 2022 and that they would be returning to Toronto, Canada on April 11, 2022.
c. On July 8 and July 22, 2021, the parties had made two offers to purchase different homes in Vaughan, Ontario. The offers appear to be signed by both parties.
d. On August 24, 2021, the parties had made a further offer to purchase a home at 36 Sandwell St., Vaughan, Ontario for $1,210,000. The offer to purchase appears to have been signed by both parties, and there is evidence of a $58,000 deposit cheque.
10There is correspondence dated May 9, 2022 between the parties’ counsel in India seeking to resolve this issue without success, and this urgent motion was then filed in Ontario a month later on June 10, 2022.
11I am satisfied that, for the purposes of an interim, without prejudice order, there is compelling evidence to conclude that the child was habitually resident in Ontario at the time this application was commenced, that this urgent motion was brought without delay, and as a result, this Court has jurisdiction under the CLRA.
12I acknowledge that the respondent has alleged abuse and domestic violence in the marriage. These allegations will be duly considered within the context of this proceeding and any parenting orders that may be made. Under s. 24 of the CLRA and s. 16 of the Divorce Act, R.S.C., 1985 c. 3 (2nd Supp.), family violence is a proper consideration when determining the best interests of a child when making parenting orders. If the respondent’s allegations of family violence are proven, it may result in her having sole decision-making (or custody) of the child. However, the allegations do not impact whether this court has jurisdiction to make orders with respect to a child, including parenting orders that the respondent may seek. This court will hear a motion on parenting orders subsequent to the return of this motion on July 12, 2022.
Reasons for Interim Ruling
13I have decided that it is appropriate and necessary to make this interim ruling now for three reasons.
14India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The respondent’s evidence is that a proceeding on the same issues has been commenced in India. As a measure of judicial comity and respect, I believe Indian courts are entitled the courtesy of knowing at the earliest opportunity whether Ontario will assume jurisdiction over this matter. By making this interim ruling, courts in India will know that Ontario is likely to assume jurisdiction, which it may consider in the context of the respondent’s court proceedings in India. On the return of this motion, if the respondent were to persuade the court that my interim order should be varied such that Ontario does not have jurisdiction, this subsequent order would, I assume, also be a relevant consideration to the Indian courts.
15Secondly, it would be a waste of scarce international judicial resources and the parties’ resources for the same issue to be litigated contemporaneously in two different jurisdictions. In my view, it is important that the parties promptly obtain an initial indication of whether this court will assume jurisdiction so that they can assess the merits of proceeding in separate jurisdictions, rather than one. An early indication from one court may similarly result in a savings of judicial resources.
16Third, it is in the best interests of the child that a decision be made promptly so that there can be greater certainty for this child in the immediate future. There is capacity in this court to render a prompt ruling on the parenting issues in dispute in this case. The court’s capacity to conduct virtual hearings and to receive evidence remotely do not create a barrier for the fair adjudication of this matter should the respondent decide to remain in India with the child in the interim.
Costs
17Costs of today’s appearance, which lasted approximately 20 minutes, will be determined on July 12, 2022.
Justice Mohan Sharma
Date: June 23, 2022