Court File and Parties

COURT FILE NO.: FS-22-00030079-0000

DATE: 13-07-2022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Saurabh Malpani, Applicant

AND:

Divya Malpani, Respondent

BEFORE: Justice Mohan D. Sharma

COUNSEL: Kenneth Younie, Counsel for the Applicant

Rajni Tekriwal, Counsel for the Respondent

HEARD: July 12, 2022

ENDORSEMENT

[1] The applicant father filed an urgent motion on June 10, 2022 seeking, among other things, an Order 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. This proceeding was initiated because the respondent mother did not return to Ontario with the child after a scheduled visit to India from January 27, 2022, to April 11, 2022.

[2] On June 23, 2022, at the request of the respondent, I granted an adjournment of this motion until July 12, 2022, to allow the respondent to prepare and deliver responding motion material.

[3] However, in granting the adjournment, I made a temporary, 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. My reasons for making this interim ruling may be found at Malpani v Malpani, 2022 ONSC 3791.

[4] The respondent has now filed a detailed responding affidavit, along with a factum. I directed the respondent to provide evidence on the sole issues that would be determined at this hearing, namely, a final ruling on the habitual place of residence of the child, and whether an Order should issue for the return of the child to Ontario. The applicant has also filed a reply affidavit.

[5] There are at least three different court proceedings in India that have been commenced:

a. On June 20, 2022, the respondent commenced a Divorce Petition in Indore, Madhya Pradesh, India seeking custody of the child. The applicant states that he has participated in these proceedings out of necessity, but that he has not admitted to the jurisdiction of the court in India.

b. On June 21, 2022, the applicant moved before the High Court in Indore, India with a Writ Petition for Habeas Corpus. In it, the applicant seeks an order consistent with the Order he seeks in Ontario, for the return of the child to Ontario.

c. On June 28, 2022, the respondent filed an Anti-Suit Injunction with a court in India. A copy of this pleading was not filed with the respondent’s material. I note that this further proceeding was launched after I made my interim ruling on June 23, 2022.

[6] India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Therefore, the relevant authority that governs this motion is the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”): see Geliedan v Rawdah, 2020 ONCA 254.

[7] The legal issues to be determined are:

a. Under s. 22 of the CLRA, is the child habitually resident in Ontario such that this Court may exercise jurisdiction in making orders with respect to the child?

b. If so, should this Court decline to exercise jurisdiction in favour of the Courts in India?

c. If Ontario does exercise jurisdiction, what orders should be made?

[8] For the reasons that follow, I am satisfied that the child is habitually resident in Ontario and that this Court has jurisdiction under the CLRA. I am not satisfied that there is a sufficient basis for this Court to decline jurisdiction in favour of a court in India. I order that the child be returned to Ontario within 30 days, and fix an interim parenting schedule, subject to variation where the best interests of the child can be assessed in making final parenting orders.

Issue 1: Is the child habitually resident in Ontario giving this court jurisdiction?

[9] Under s. 22(1)(a) of the 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.

[10] While there are several facts in dispute from the contradictory affidavits of the parties, the evidence on whether the child has been habitually resident in Ontario is largely not in dispute:

a. The parties met in 2012 and were married on January 18, 2014 in India. They are both Indian citizens.

b. In March 2014, the parties moved to Chicago, USA. They had visas that allowed them to either work or study in the USA.

c. On August 29, 2016, the child was born in Chicago. She is a USA citizen by birth. She is almost six years old. The applicant states that the respondent wanted the child to be born in the USA, which the respondent did not deny in her affidavit.

d. The parties, along with the child, are all permanent residents of Canada. While there is some dispute as to when the parties decided to apply for permanent residency status in Canada and received their permanent residency cards, it was either in June of 2018 or at the latest, September 2019, when they obtained permanent residency status in Canada.

e. In September 2019, the applicant moved to Toronto where he commenced an MBA at the Schulich School of Business. The respondent and the child stayed in Chicago to allow her to complete her Master’s program in Architecture.

f. In January 2020, the parties agreed for the child to stay in India with the respondent’s parents for three months. However, in March 2020, due to the COVID pandemic, it was not possible for the child to return to her parents – in Chicago or Toronto.

g. In March 2020, the respondent flew to Toronto as a permanent resident to Canada and she resided with the applicant in the Toronto area, while the child remained in India.

h. In June 2020, the parties flew to India to be reunited with their child, who had been in the maternal grandparents’ care since January of 2020.

i. In September 2020, the parties and the child returned to Toronto. From this date forward, the child lived with both parents in the Toronto area.

j. The parties made three offers to purchase homes in Ontario in July and August 2021. The respondent did not dispute that her signature was affixed to those offers.

k. The child’s doctor, dentist and ophthalmologist are all in the Toronto area.

l. The child and the respondent each have a card for insurance under the Ontario Health Insurance Plan. They are also covered under the applicant’s medical and dental insurance provided through his employer.

m. The child was enrolled at McKee Public School in Toronto, Ontario. A report card from the school, dated November 17 2021, evidences that the child was doing well, “with great confidence and a readiness to learn.” It did not recount any serious challenges the child was experiencing. It does reference that the child drew a picture of her family and that she explained, “This is my mom, my dad and me.”

n. With the consent of the applicant, the respondent’s father purchased return airfare tickets for the respondent and the child to travel from Toronto to Indore, India, departing on January 27, 2022 and returning on April 11, 2022.

o. On January 27, 2022, the respondent emailed the school and copied the applicant to advise that she would be travelling to India with the child and that the child would not be attending school. She stated in her email, “We will be back in April.”

p. The applicant also travelled to India from Toronto on March 18, 2022 to visit his parents in Mumbai and to also spend time with the respondent and their child. He spent the first week with his parents in Mumbai and later spent time with the respondent and the child. When the applicant was boarding his return flight to Toronto on April 6, 2022, he received a phone call from the respondent advising that she would not be returning with the child on April 11, 2022 as planned. Instead, she would be staying in India with the child.

[11] Based on these facts, I find that the child was habitually resident in Ontario at the time the applicant commenced these proceedings. It is not disputed that the child resided with both parents in the Toronto area before the trip to India. During oral argument, the respondent’s counsel did not dispute that Ontario was the child’s habitual place of residence. In fact, there are sufficient facts in the respondent’s own affidavit which support the conclusion that the child was habitually resident in Ontario. As noted in my interim endorsement in this case, there is sufficient objective evidence which shows that the child had close connections to Ontario and that the parties had a settled intention for Ontario to remain, for at least the immediate future, the child’s place of residence.

[12] I reject any argument that the parties had agreed that the respondent and the child would move to India imminently or at any time, and that Ontario was only a temporary home. While there is evidence that since June 2021 the parties were having difficulties in their marriage and might separate, there is no evidence which would lead me to conclude that there was an understanding that if the parties separated, the child would relocate to India. At most, the respondent’s evidence is that there were times when she had proposed this, but she admits in her affidavit that the respondent did not agree to this proposal. The applicant denies that the respondent ever proposed relocating to India.

[13] I also cannot conclude that the applicant consented to the respondent withholding the child in India, or that he acquiesced or was delayed in seeking to have the child returned to Ontario: see s. 22(3) CLRA. The evidence is unequivocal that the parties intended for the child to have a visit in India, and that she would return on April 11, 2022. The applicant gave his consent for the child to visit India on an express understanding that the child would return to Ontario. There was no evidence that he consented to the child permanently relocating to India. The evidence showed that he promptly took steps to have the child returned to Ontario through negotiations with the respondent’s counsel in India, the commencement of this proceeding in Ontario weeks later in June 2022, followed by seeking a Writ of Habeas Corpus from the High Court in India.

Issue 2: Should this court decline to exercise jurisdiction in favour of the courts in India?

[14] The respondent argues that the child is much more connected to India and Indian culture since birth, as compared to Ontario. She argues that the child has spent considerable time in India – 3 months from May 2019 to August 2019; then 6 months between January 2020 to June 2020; and now, since January 2022. She argues that India is the child’s concurrent habitual place of residence.

[15] I am not satisfied that the child has had a habitual place of residence in India for the following reasons.

[16] From the respondent’s own affidavit, the child’s visits to India were temporary in nature. They were extended due to the immigration rules in the USA, a consequence of the COVID travel restrictions, or the respondent’s decision to overhold the child without the respondent’s consent. After each temporary visit to India, the child returned to either Chicago or Toronto to be with her parents. During these visits, there is no evidence that the child was registered in educational programs or extra-curricular programs in India, attended regular medical or dental appointments in India, or was enrolled in other programs in India during her visits to suggest that her habitual residence was in India. Rather, the evidence shows that the extended nature of the child’s stays was not because the parties had a settled intention that the child be habitually resident in India, but because of other external factors outside of the parties’ control, or because the respondent wrongfully overheld the child in India.

[17] It was only after the respondent unilaterally decided to remain in India with the child, without the consent of the applicant, did the child become enrolled in school and other activities in India. It would be contrary to s. 22(3) of the CLRA to find that the child’s enrolment in school and other activities in India, which is exclusively a result of the respondent’s overholding the child in India, establishes India as the child’s habitual residence.

[18] I agree that the child’s Indian language, spirituality, and culture has been an important aspect of this child’s life and that it ought to be fostered in any parenting order made. However, I cannot conclude that this is an exclusive consequence of the child spending time in India. There was a significant period when the parties were living in Chicago or Toronto when the child was cared for and nurtured by the paternal and maternal grandparents where Indian language and culture were prominent. The evidence also shows that the parties, while in Toronto, celebrated Diwali, spoke Hindi and had Indian family connections in Ontario. In other words, the child’s connection to Indian language, spirituality, and culture is not exclusively related to her time spent in India. It can be nurtured while in Ontario, and on future visits to India.

[19] Even if I were to find that the child was concurrently habitually resident in Ontario, I would find that the child has a closer and more permanent connection to Ontario. The respondent relies on Korenic v. DePotter, 2022 ONSC 3954, where Justice Dubé of this Court considered whether Ontario should exercise jurisdiction in a case where parties were separated and had an informal shared parenting arrangement with the children living on both sides of the Canada and USA border for almost two years – with the mother in Shelby Township Michigan, and with the father in Windsor, Ontario. In that case, Justice Dubé found that the children habitually lived concurrently in both Michigan and Ontario. To resolve whether Ontario had jurisdiction, he relied on s. 19(b) of the CLRA which states:

The purposes of this Part are,

(a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and

(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child.

[20] Dubé J. considered the children’s connection to both jurisdictions, the history of court filings in Michigan, and that the children’s health care was largely based in Michigan in concluding that Michigan, not Ontario, was the proper jurisdiction.

[21] Korenic is distinguishable. In that case, the children were living in a shared parenting arrangement, post-separation, in two different jurisdictions for almost two years. In this case, the child was never living in a shared parenting arrangement post-separation; at all times, the family remained a single unit and the trips to India were visits, not part of a shared parenting arrangement. Moreover, the nature of the child’s connections – schooling, medical care, permanent home – are all connected to Ontario and not India.

[22] The respondent argued that given the multiple proceedings going on in India, jurisdiction has indirectly been established there. I disagree. The evidence shows that this proceeding in Ontario was launched first. In any event, nothing turns on when the proceedings in India were commenced in terms of the statutory scheme under the CLRA for whether Ontario has jurisdiction: see Singh v Saini, 2013 ONSC 4680 at para 17. There is no order from the courts in India that has been brought to my attention that is inconsistent with this decision. The applicant states that he has not admitted to the jurisdiction of Indian courts, and he is only participating in proceedings launched by the respondent out of necessity. His petition for a Writ of Habeas Corpus in the Indian High Court, in my view, is consistent with the position he is taking in this Ontario proceeding; namely that the child be returned to Ontario for determination of the issues in dispute between the parties.

[23] Finally, one of the purposes of Part III of the CLRA, as set out in s. 19(c) noted above, is to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process. To find that India is a habitual place of residence of the child because the respondent has withheld the child in India without the applicant’s consent, would be inconsistent with one of the legislative purposes of Part III. It should not be rewarded or sanctioned by this Court.

Issue 3: What orders should be made?

[24] Given my finding that Ontario has jurisdiction to deal with parenting orders with respect to the child, I order that the respondent return the child to Toronto, Ontario within 30 days.

[25] I further request the assistance of Indian courts and Indian law enforcement officials to assist in the apprehension and return of the child to Ontario, should the respondent refuse or fail to comply with my Order. In facilitating the apprehension and return of the child to Ontario, the child may be escorted on a return flight to Toronto by the applicant, the applicant’s parents, Shyan Malpani (child’s paternal grandfather) and Sunia Malpani (child’s paternal grandmother), and/or the applicant’s brother or sister-in-law, Siddarth Malpani (child’s paternal uncle) and Prema Manyal (child’s paternal aunt).

[26] To the extent it is required or necessary, I order that the Sheriff of the Judicial District of North York, the Toronto Police Service, the Ontario Provincial Police, and any other police service with authority shall take the necessary steps to execute this Order.

[27] I further order that the respondent shall execute and provide any and all documentation necessary to facilitate the child’s return to Toronto, Ontario to those who may be escorting the child to Toronto, Ontario, or to the solicitor for the applicant located in India. This documentation shall include, but shall not be limited to, the child’s USA passport, birth certificate, Canadian Permanent Resident Card, Indian OCI card, and any other documentation necessary to enable the child to travel to Toronto, Ontario.

[28] Pending the return of the child to Ontario, the applicant shall have video or telephone conference calls with the child on a daily basis at a mutually agreeable time until her return to Toronto, Ontario.

[29] I order that neither party shall communicate with the child in a negative or disparaging way about the other party, nor shall they invite or encourage others to do so.

[30] Upon the child’s return to Ontario, and until varied by further court order or the parties’ agreement, the respondent or whomever escorts the child to Toronto, Ontario shall forfeit the child’s passport and all other government issued identity documents to the applicant.

[31] The bulk of the respondent’s evidence on this motion related to parenting orders that should be made in the best interests of the child. In summary, the respondent argued that it was in the child’s best interest that the child reside principally with the respondent because of allegations regarding the applicant’s mental health, physical and emotional abuse, and the pattern of care to which the child had been accustomed. The applicant responded to these allegations, and there is a significant factual dispute between the parties on these issues. The focus of this motion is not on permanent parenting orders that are in the best interests of the child, but whether this Court has jurisdiction and should exercise that jurisdiction.

[32] However, upon the child’s return to Toronto, it will be necessary to make interim parenting orders until a proper hearing on longer term parenting orders can be made, which fully consider the parties’ contested allegations. Accordingly, I order on an interim basis and subject to variation at a further motion or the parties’ agreement, that the child shall reside primarily with the respondent upon the child’s return to Toronto, with the child spending time with the applicant:

a. Every Monday and Wednesday from 3:30 pm until 7:30 pm; and

b. Alternating weekends from Friday at 3:30 pm until Sunday at 6:00 pm.

[33] If the respondent does not return to Ontario with the child, the child shall reside exclusively with the applicant.

[34] I further order, on a temporary basis subject to further variation, that the applicant shall have sole decision-making with respect to the child’s education and extra-curricular activities. The respondent shall have interim sole decision-making with respect to medical decisions, however, at all times, she shall follow the medical advice of the treating physician. The parties shall consult and keep the other party advised prior to making any major decisions in the child’s life, except in cases where urgent medical decisions must be made. Parties shall communicate by email, or in the case of emergency, by telephone.

[35] I make these orders having considered that the child has resided primarily with the respondent for over six months, and that a gradual re-entry into the applicant’s life is appropriate and in the child’s best interests. I am not persuaded by the respondent’s evidence that the child is in great harm, let alone, any harm while in the applicant’s care. The respondent’s allegations were self-serving and unsupported by any objective evidence. While the child may have witnessed arguments between the parties, I am satisfied that with the parties living separate and apart, the prospect of this reoccurring is minimal or non-existent. I am not persuaded that the applicant’s receipt of therapy from a psychologist to assist him in managing his emotions is cause for concern while the child is in the applicant’s care.

[36] The applicant seeks an Order that that this Court decline to recognize any Orders of Indian Courts for enforcement purposes that the respondent may seek or produce pursuant to s. 41 of the CLRA. I am not aware of an Indian Court Orders having been made. Therefore, it is premature to grant this relief. Should an Order of an Indian Court be made, leave is granted to the applicant to argue whether those Orders should be enforced in Ontario.

[37] Finally, there was evidence of the applicant removing funds from the parties’ joint bank accounts - $150,000 on June 23, 2022, and $112,976.75 on June 29, 2022. The applicant admitted to this and explained he did so because the respondent had withdrawn $30,000 from the parties’ joint account without the applicant’s consent. He was concerned she would entirely dissipate the funds in the joint account if he did not remove them. Because of her unilateral decision to remain in India with the child, he was concerned. The respondent says these funds belong to her parents.

[38] I make the following interim preservation order. Of the $272,976.75 in funds removed by the applicant from the parties’ joint bank account, $230,000 shall be deposited in an interest-bearing trust account of the applicant’s Ontario lawyer, Mr. Kenneth Younie, and shall remain there pending further determination by this Court. However, I order that funds may be released from the $230,000 held in trust by Mr. Younie to cover the reasonable travel costs of (a) the respondent and the child from India to Toronto, or (b) the child and one adult escort from India to Toronto. Parties may agree on further amounts to be released from the remaining funds held in trust.

Costs

[39] Parties may deliver cost submissions not exceeding three pages, double-spaced. They shall attach a Bill of Costs, as well as any Offers to Settle. The applicant shall deliver cost submissions by July 27, 2022. The respondent shall deliver cost submissions by August 10, 2022. Costs submissions shall also address costs from the appearance on June 23, 2022.

Justice Mohan D. Sharma

Date: July 13, 2022