Court File and Parties

COURT FILE NO.: FS-22-0109-00

DATE: 2022 09 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.D., Applicant

AND

A.D., Respondent

BEFORE: Justice Ranjan Agarwal

COUNSEL: Khyati Vyas, Lawyer for the Applicant Vanessa Sidwell, Lawyer for the Respondent

HEARD: September 2, 2022

ENDORSEMENT

[1] Every September, Hindus offer prayers to their ancestors during Pitru Paksha Shraddha, a 15-day period following the autumnal full moon. Hindus believe that the souls of their ancestors wander in a realm between heaven and earth—the prayers of the departed’s families during Pitru Paksha Shraddha free the departed’s souls and help them transition to heaven.

[2] For the applicant MD, whose mother passed away in May 2022, this ritual is especially important this year. She wants to travel to India with the parties’ 4-year-old child to observe this ritual. The respondent AD refuses to consent to the child’s travel. Though AD acknowledges the importance of the ritual, he believes the risk that MD will not return the child to Canada is not in the child’s best interests. He believes the ritual can be observed in Canada.

[3] I agree. For the reasons discussed below, the importance of Pitru Paksha Shraddha to the child is outweighed by the risk of abduction. On the evidence that was filed for this motion, MD has insufficient ties to Canada so that there is a plausible risk that she will not return the child to Canada. She hasn’t attorned to the jurisdiction of the Ontario courts for divorce proceedings. Given that the child was born and raised here, and is starting Junior Kindergarten here, I believe it’s in his best interest not to go to India.

Facts and Evidence

[4] The applicant MD and the respondent AD were married in February 2013. The parties separated in August 2021. There is one child of the marriage—the child is turning 4 soon.

[5] In late August, MD started an application under the Family Law Rules. MD doesn’t make any claims under the Divorce Act, Family Law Act, or Children’s Law Reform Act. The only claim she makes is for “travel consent”: she seeks an order that she be able to travel with the child to India for 6 weeks between September 8^th and October 20^th. She also seeks ancillary orders to facilitate this travel. MD says she sought only this relief now because the application is “extremely time sensitive”. Arguably, she could start divorce proceedings in India as she has not attorned to the jurisdiction of the Ontario courts.

[6] MD requested an urgent motion. Justice Emery ordered that MD’s motion be heard on September 2^nd. I heard the motion that day. Given the alleged urgency, I provided the parties my decision after oral submissions—I dismissed the motion. I advised the parties that I would provide them with my reasons for decision, along with my order on costs. These are those reasons.

[7] MD and AD are Hindus. MD wishes to travel to India in September for an annual 15-day Hindu ceremony when Hindus offer prayers to their ancestors.

[8] In September 2021 and again in May 2022, MD asked AD if she could travel to India with the child to visit her ailing mother (affidavit of MD, sworn August 23, 2022). AD refused consent. In May 2022, MD’s mother passed away.

[9] AD’s concern is that MD will not return the child to Canada. India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which AD says exacerbates his concern. I

[10] In July 2022, MD asked AD if he would consent to the child traveling to India for 6 weeks in September for the Hindu ceremony. AD refused again, for the same reason. MD then started this proceeding.

[11] AD’s concern is based on several grounds (affidavit of AD, sworn August 30, 2022). He says:

• MD is unhappy in Canada and told him that she wants to move back to India
• MD has no other family here
• MD hasn’t completed the licensing requirements to practice her profession (pharmacist) in Ontario
• MD doesn’t own property in Ontario
• MD’s travel plans are during the child’s first 6 weeks of his first year of school (Junior Kindergarten)
• MD did not provide him an itinerary or copies of the tickets
• MD didn’t provide AD a communication plan for him and the child when they are in India
• as late as August 10^th, MD proposed a parenting plan for September and October, which included the child’s birthday in late September—AD has planned the child’s 4^th birthday party at Chuck E Cheese
• MD has never been apart from the child for 6 weeks

[12] AD says, in contrast, that MD has strong ties to India:

• her father and siblings live there
• most of her friends live there
• she can work as a pharmacist in India
• most of her assets are held in Indian banks (affidavit of AD, sworn August 30, 2022)

[13] Many facts aren’t in dispute: MD doesn’t have family in Ontario; all her family is in India; she’s not a licensed pharmacist; and she doesn’t own property in Ontario.

[14] That said, MD disagrees on some matters (affidavit of MD, sworn August 31, 2022):

• though she encountered challenges as a new immigrant to Canada and living in a basement apartment, she wants to live in Canada
• she works full-time in a fertility clinic—MD says her goal was to work in the healthcare industry, not necessarily a pharmacy
• she’s willing to divide their time in India between her father and her in-laws, all of whom live within 5 miles of each other
• her grandmother is ailing and wishes to see the child
• she’s surrendered her Indian pharmacist license
• she didn’t write the Ontario pharmacy licensing exam because of her mother’s illness, her marital challenges, and her own health issues
• she doesn’t own real estate in India
• she’ll provide AD with a travel itinerary if he consents to this motion (presumably she doesn’t want to purchase airfare if AD doesn’t consent)
• she’ll provide AD with a “dedicated phone number” so AD can contact the child by phone or video
• she’s willing to change the parenting plan

[15] MD says that it’s not mandatory for the child to be enrolled in kindergarten. That’s true—kindergarten is not mandatory for 4- and 5-year-old children.

[16] Neither party led an expert’s evidence on the Hindu ritual at issue. MD deposes that it’s important for “male descendants to perform this ceremony after a family member has passed away” (affidavit of MD, sworn August 23, 2022). She says the presence of the “youngest male” is “essential” (affidavit of MD, sworn August 23, 2022).

[17] AD responds that the child can observe the ritual at a temple in Brampton with him and MD, and they can, together, honour all their deceased ancestors (affidavit of AD, sworn August 30, 2022). AD also asserts that, for this ceremony, the most important relative is the eldest male descendent of the deceased, who would be MD’s brother and not the child (affidavit of AD, sworn August 30, 2022).

[18] MD replies that it is important that the ritual happen where the deceased passed away, especially the first year after their death (affidavit of MD, sworn August 31, 2022). MD also replies that the presence of all male family members at the ritual will unite the family and help the departed accept their prayers (affidavit of MD, sworn August 31, 2022).

[19] AD challenges why MD needs to be in India for 6 weeks if the ceremony is only 15 days. MD conceded that they would go to India for only 3 weeks if AD consented—given the cost and duration of the travel, she wishes to spend additional time in India with her and the child’s relatives, which is reasonable. She also accepts that missing less school time will “boost his knowledge and create a foundation”, even though it’s not mandatory (affidavit of MD, sworn August 31, 2022).

[20] The parties don’t have a parenting plan. AD has parenting time for 5 nights every two weeks.

[21] AD’s materials for this motion attempted to relitigate the urgency of the motion. Given Justice Emery’s order, I didn’t give effect to that argument. AD also objected to MD’s reply affidavit as improper under rule 14(20). Justice Emery’s endorsement specifically contemplated reply materials so I didn’t give effect to this argument either.

[22] In oral submissions, MD’s lawyer proposed a lawyer’s undertaking. AD rejected this option as too difficult to fulfill (and, likely, too risky for the lawyer).

Legal Framework

[23] This court may make an order providing for the exercise of parenting time or decision-making responsibility for any child of the marriage (Divorce Act, RSC 1985, c 3 (2nd Supp), s 16.1). Decision-making responsibility for a child, or any aspect of that responsibility, may be allocated to either spouse or to both spouses (Divorce Act, s 16.3).

[24] The order may be for a definite or indefinite period, and the court may impose any terms, conditions, and restrictions it considers appropriate (Divorce Act, s 16.1(5)).

[25] The court shall take into consideration only the best interests of the child of the marriage in making a parenting order (Divorce Act, s 16(1)). Section 16(3) lists several factors, including the child’s age and stage of development; the child’s cultural, linguistic, religious, and spiritual upbringing and heritage; and the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child.

[26] When considering the factors referred to in section 16(3), this court shall give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being (Divorce Act, s 16(2)).

[27] On motions for temporary parenting orders, generally the status quo will be maintained absent compelling reasons requiring change to meet the child’s best interests. See Grant v Turgeon, 2000 CanLII 22565 (Sup Ct) at para 15. The court’s responsibility is to focus on the short-term needs of the child and minimize possible disruptions. The court must try to provide the child with certainty and stability in an environment that is safe and secure for them. See MPDS v JMS, 2022 ONSC 1212 at para 38; Rashid v Avanesov, 2022 ONSC 3401 at para 23.

[28] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at later conferences or resolved at a trial. The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. See Coe v Tope, 2014 ONSC 4002 at para 25; Costello v McLean, 2014 ONSC 7332 at para 11.

[29] The status quo means “that which existed just prior to the parties' separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation.” See Batsinda v Batsinda, 2013 ONSC 7869 at para 28; Downs v Downs, 2022 ONSC 3382 at para 20.

[30] When determining whether to allow a parent to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks. See Saini v Tuli, 2021 ONSC 3413 at para 28.

[31] The weighing process is necessarily fact specific. In Saini, the respondent sought to take the children in that case to California for over a month—she had to travel for work and did not believe the applicant could care for them while she was away. The court dismissed her motion because the travel was not essential for the children and the respondent could care for them.

[32] In Yacoub v Yacoub, 2010 ONSC 4259, the respondent refused to consent to the children in that case traveling to Egypt with the applicant for a month. One of the concerns he raised was the risk they would not be returned to Canada—Justice McGee gave no effect to that submission because no supporting evidence was filed. Justice McGee held that the respondent’s other concerns (prepaid day camps and a pending piano exam) were outweighed by the “one time opportunity for the girls to visit extended family, explore their heritage and enjoy the benefits of world travel”. “Travel is a desirable experience for young people, particularly to meaningful locations and to reconnect with extended family” (at para 21).

[33] Mahadevan v Shankar, 2010 ONSC 5608, is like this case. There, the respondent wanted to take the 4-year-old child of the marriage to India for Diwali and to visit his family. The applicant refused consent because she feared the child would not be returned to Canada. In that case, the respondent had ties to Canada—he was a tenured professor at McMaster University and living with his new partner in Hamilton. Even then, Justice Pazaratz dismissed the motion because of the risk of abduction: “The benefit of the proposed vacation does not nearly outweigh the risks. While family and cultural enrichment are to be promoted, the court must give primacy to the child’s physical and emotional security.”

Disposition

[34] For a young child, it may be challenging to determine their interest in a religious belief or ceremony. The evidence in this case was necessarily cast in his parents’ belief.

[35] But I’m prepared to accept that the child in this case has a strong interest in participating in this ritual. He is being raised as a Hindu. The ritual honours his deceased ancestors. His faith teaches him that his prayers will help his grandmother ascend to heaven. AD doesn’t dispute the importance of the ritual or the child’s participation in the ritual. MD’s request is not merely about her wishes or even the child’s family or cultural enrichment—it’s about ensuring the child is exposed to and participates in his cultural and religious upbringing as a Hindu.

[36] But the child’s right to participate in this ritual is outweighed by the need to protect his physical, emotional, and psychological safety, security, and well-being. The evidence on this motion proves that this need is too great:

• MD has little or no ties to Canada—she doesn’t own property here, she doesn’t have family here, she’s not enrolled in any education or licensing program here, and she’s not practicing her profession here
• MD hasn’t attorned to the jurisdiction of Ontario—her reply that she didn’t seek other relief because this application is urgent is undermined by the fact that Form 8: Application (General) only requires her to check boxes to make additional claims and, as a result, she’s reserved the right to sue for divorce in India (intentionally or not)
• India is not a signatory to the Hague Convention—in Mahadevan, the court acknowledged several significant risks if a child is abducted to India (see paras 22 and 39)
• the child is very young—at age 4, his ability to fully participate and appreciate the significance of the ritual is diminished
• he may miss his birthday party at Chuck E Cheese—in this child’s short life and given his age, that is a significant and special event
• the child would miss the beginning of Junior Kindergarten this month—learning at this stage improves his skills and provides a strong foundation for his academic future
• the child hasn’t been away from his father over a longer time and sees him regularly

[37] As the parties’ evidence on the particulars of the ritual was contested, I can’t make any findings on whether the child’s presence at the ritual is essential or whether the ritual should be performed in India.

[38] For all these reasons, the motion is dismissed. That said, I emphasize my decision here is based on the evidentiary record presented to me. If MD can establish that she has sufficiently strong ties to Canada that the risk of abduction is minimized, the child’s interest in traveling to India to practice his faith may be justified.

Costs

[39] After the oral hearing of this motion, the parties advised me that they had settled costs. I endorse an order that MD shall pay costs to AD in the amount of $2,034 inclusive of HST and disbursements, within 30 days of September 2, 2022.

Agarwal J.

Date: September 12, 2022

COURT FILE NO.: FS-22-0109-00

DATE: 2022 09 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.D., Applicant

AND

A.D., Respondent

BEFORE: Justice Ranjan Agarwal

COUNSEL: Khyati Vyas, Lawyer for the Applicant Vanessa Sidwell, Lawyer for the Respondent

HEARD: September 2, 2022

ENDORSEMENT

AGARWAL J.

DATE: September 12, 2022