Court File and Parties
COURT FILE NO.: 3173-14 DATE: 2022-08-15 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: N.S., Applicant AND: M.S. (B), Respondent
BEFORE: The Honourable Madam Justice L. Bale
COUNSEL: Farrah Hudani, Counsel, for the Respondent
HEARD: August 12, 2022
Endorsement
OVERVIEW
[1] This is an ex parte motion brought by the Respondent mother under Part III of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, relating to 12 year-old P.S. The Respondent’s Notice of Motion requests an Order for the following:
The delivery of the child to an agent of the Respondent mother (who resides in Ontario);
The child to remain in Ontario pending return of the ex parte motion;
That the Applicant father be prohibited from removing the child from the Province of Ontario;
That the child’s American Passport, Person of Indian Origin Card, Canadian permanent resident documentation, Birth Certificates, and Citizenship Certificates be deposited with and retained by the Respondent’s counsel;
That all police enforcement, border services agencies, passport offices, etc. having jurisdiction where the child is located assist in the enforcement of the terms of the court’s order, including all terms above, and further to:
a. Provide on an immediate basis the exact address and location of the Applicant father and child; and
b. Enter any premises and conduct any search at any time necessary to enforce compliance with the order.
- That the Order not be served upon the Applicant father until he is in Ontario, and that the return date of the motion not be scheduled until the father is in Ontario.
BACKGROUND
[2] The Applicant and Respondent are the parents of the subject child. They have been involved in extensive litigation over parenting issues for approximately eight years in both Ontario and in India. In India, the matter reached appellate levels.
[3] On May 11, 2022, the parties resolved their parenting issues on a final basis by way of negotiated settlement reached in India. Their agreement was incorporated into the Final Order of the Honourable Justices Sanjay Kishan Kaul and M.M. Sundesh dated May 11, 2022 of the Supreme Court of India.
[4] On May 27, 2022, the Final Order of the Supreme Court of India was brought to the attention of the family court in Hamilton, Ontario, and an Order was made, with the consent of both parties, which:
Declared and recognized the Final Order of the Supreme Court of India dated May 11, 2022 to be a binding order of the court in matters relating to the parenting of the subject child P.S., as per s. 41(1) of the Children’s Law Reform Act; and
Deemed the Final Order of the Supreme Court of India to be an order of the court and enforceable as such, as per s. 41(2) of the Children’s Law Reform Act.
[5] The agreement reached in India seems to suggest that the parties would also take steps to have the provisions of the Final Order of the Supreme Court of India “mirrored” in the USA. It does not appear that this step has yet been completed.
[6] In addition to other parenting terms which are not material to the issues at hand, the Final Order of the Supreme Court of India provides that:
The child will continue to reside with the Respondent mother in Ajmer, India until he completes his Class 10 education, at which time his residence will shift to reside with the Applicant father in the USA.
Until the child completes his Class 10 education, he will visit Canada and the USA with the Applicant father every year from June 1st to June 30th, with the father picking up and delivering the child to KishanGarh Airport in Ajmer, India.
[7] In keeping with the terms of this order, the child was delivered to the Applicant father in June 2022. Not in keeping with the terms of this order, the child has not been returned into the Respondent mother’s care. The child’s exact current whereabouts are presently unknown.
Information Regarding the Residence and Current Whereabouts of the Child
[8] The child was born in Baltimore, Maryland. He is a citizen of the USA and a permanent resident of India.
[9] The parties and child appear to have resided in multiple jurisdictions (both together and separately) during the marriage and following separation, including but not limited to Ontario, Illinois, New Jersey, and India.
[10] The Respondent mother and child have resided in India since August 4, 2013.
[11] The Applicant father’s current residence is unknown to the court.
[12] The Affidavit materials filed suggest that in June-July 2020 the Applicant father and child have travelled from India to the USA, USA to Canada, and from Canada back to the USA. Documentation attached to the Respondent mother’s Affidavit materials reflects the following travel:
a. From Delhi to Newark (USA) on June 8, 2022 (as per airplane ticket);
b. From Newark to Detroit on June 9, 2022 (as per airplane ticket);
c. Across the Blue Water Bridge from the USA (Michigan) into Canada (Sarnia) on June 12, 2022;
d. Across the Blue Water Bridge from Canada (Sarnia) into the USA (Michigan) on July 6, 2022.
[13] On July 12, 2022 the child texted the Respondent mother’s brother (the maternal uncle) and indicated that the Applicant father “doesn’t want to bring me back he has plans to make mom come here make me and her live here Don’t type back”.
[14] The child was confirmed to be in Berkeley, Michigan on July 14, 2022 as per a wellness check conducted by the police. Police notes indicate that the father is “up and down from Canada to Berkley” and that he has a house in the Chicago area. Further, the child appears to be “well cared for” but stated to officers that he wants to be back to India with his mother.
[15] The Respondent mother advises the court that the Applicant father’s mother and sister (the paternal grandmother and aunt) reside in Ancaster, Ontario. The father is said to visit them regularly.
[16] Prior to his scheduled vacation with the child the Applicant father produced a return airplane ticket for the child (to India on July 3, 2022) to the Respondent and to the mediator in India (a retired Supreme Court Judge). The child was not on the return flight and remains in the father’s care in an unknown location to date. The Applicant father has not permitted the child and Respondent mother to communicate with one another. The Applicant father has been non-responsive to the mother’s messages and is no longer communicating with his counsel in India.
[17] The best and most current information before the court is that the child is either in Michigan or Illinois, USA.
Subsequent Enforcement Proceedings in India
[18] On July 22, 2022 the Supreme Court of India, in the context of contempt proceedings, stated that “there is little doubt that the contemnor is guilty of willful disobedience of the Orders of the Court”. The court made orders for assistance from the Secretary of the Ministry of External Affairs and the Central Bureau of Investigation and further implored assistance from the Indian Embassies in the USA and Canada, and for comity by the foreign courts.
Ex Parte Proceedings in the USA
[19] In her Affidavit of August 1, 2022, the Respondent mother advised that she had commenced enforcement proceedings in Michigan, USA.
[20] Her Affidavit of August 8, 2022 outlines that later that day the Respondent mother was served with an Emergency Order of Protection of the State of Illinois Circuit County Court, dated July 11, 2022; an order which was obtained by the Applicant father without notice to the mother. The return date of the ex parte order was August 1, 2022 and the Respondent was not prepared to make representations in court on that date.
[21] Of note, the Emergency Protection Order:
Prohibits any contact or communication between the Respondent mother and the child or the Applicant;
Orders the Respondent mother not to harass, stalk, intimidate or interfere with the personal liberty of the father;
Withholds the address of the father, but orders that the mother not attend at his residence and order her to stay away from him at all times;
Makes a finding that the father is the primary caretaker of the child and grants him physical care and possession of the child;
Prohibits the Respondent from removing the child from the physical care of the father;
Prohibits any parenting time or contact between mother and child;
Makes findings that the Respondent mother is likely to:
a. Abuse or endanger the child during parenting time;
b. Use parenting time to abuse or harass the father or his family;
c. Improperly hide or detain the child;
d. Act in a way that is not in the best interests of the child; and
- Prohibits the Respondent mother from hiding the child or removing the child from the State of Illinois.
[22] Suffice to say, the information relied upon by the Applicant father to obtain this ex parte Order appears to contain many material deficiencies. Unless referenced in oral submissions, at minimum it does not appear likely that the Illinois court was made aware of the Final Order of the Supreme Court of India, or this court’s recognition of that order.
[23] Since receipt of that Order, the Respondent mother has taken steps to commence an emergency petition in Illinois to register a Foreign Order and to return the child into her care. The court is advised that:
a. The return date of the of the Emergency Order of Protection is Tuesday, August 16, 2022 (before the judge who issued the initial Order); and
b. The Respondent mother’s motions for the enforcement of the Order of the Supreme Court of India are scheduled to be heard on Wednesday, August 17, 2022 in that same jurisdiction.
LAW & ANALYSIS
[24] The purposes of Part III of the Children’s Law Reform Act are as follows:
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: s. 19.
[25] While certainly applicable to all parenting proceedings under the Children’s Law Reform Act, these enumerated purposes resonate with force on the facts of this case. The court is left to balance three somewhat competing factors in this case:
The court must attempt to avoid exercising concurrent jurisdiction over this child. At this time two other foreign courts, both the Supreme Court of India and the State of Illinois Circuit Court of Cook County, have asserted a level of territorial jurisdiction over P.S. The child, to this court’s knowledge, has a lesser connection with and is not physically present in the jurisdiction of Ontario.
This court must discourage the abduction of children, and must encourage determination of parenting issues by due process. The Respondent will undoubtedly argue that the Emergency Order of Protection made by the State of Illinois Circuit Court of Cook County was obtained without due process. She has commenced proceedings to attempt to remedy that situation.
This court must strive for the effective enforcement of court orders made outside of Ontario. However, two competing Orders have been made by courts in two foreign jurisdictions. This court has previously specifically recognized one of those Orders as valid and binding.
Ex Parte Nature of Motion
[26] This matter came to my attention in chambers on August 8, 2022. The Respondent mother classifies this matter as a child abduction issue, an issue that we attempt to treat with the utmost level of urgency and attention in family court.
[27] Under the Family Law Rules, a motion may be made without notice if:
(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
(b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;
(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or
(d) service of a notice of motion would probably have serious consequences: Rule 14(12) Family Law Rules, O. Reg. 439/07, s. 1.
[28] By combination of concerns grounded in Rule 14(12)(b) and (c), I permitted this motion to proceed on an ex parte basis, however I raised two areas of concern with counsel and requested oral submissions on these points. Specifically, I requested counsel’s submissions regarding:
The appropriateness of prescribing terms to enforce a foreign order that is known to have been subsequently superseded by another court in another jurisdiction, whether or not this order was properly obtained; and
This court’s jurisdiction to make an enforcement order where (a) the court has previously declared that another jurisdiction has territorial authority over the child, and (b) the child is not physically present in the jurisdiction.
[29] The facts of this case demonstrate the mischief that can arise when motions are brought without notice to other interested parties. It should therefore not go without notice that the motion before the court has also been brought on an ex parte basis. This court must therefore be alert to the possibility that any order made will serve to perpetuate the problems of forum shopping and reliance upon incomplete and/or one-sided information.
Application of the Children’s Law Reform Act
[30] In identifying the applicable provisions of Part III of the Children’s Law Reform Act, at the outset it is important to note three points:
India is not a signatory state to the Convention of Civil Aspects of International Child Abduction;
This court is not being asked to craft a parenting order or contact order. Rather, the court is being asked to make an order with enforcement terms designed to give effect to (or compel compliance with) the terms of the Final Order of the Supreme Court of India dated May 11, 2022; and
This court has not been asked to make an order which supersedes either of the foreign court orders in this matter, on the basis of a material change in circumstances.
[31] As a result of these three circumstances, I conclude that the applicable provisions of Part III of the Children’s Law Reform Act are neatly contained within s. 41 of the Act. Specifically:
Enforcement of extra-provincial orders
41 (1) Upon application by any person in whose favour an order granting decision-making responsibility, parenting time or contact with respect to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,
(a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
(b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
(c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
(d) that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
(e) that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
Effect of recognition of order
(2) An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such.
Conflicting orders
(3) A court presented with conflicting orders made by extra-provincial tribunals granting decision-making responsibility, parenting time or contact with respect to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child.
Further orders
(4) A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order.
[32] This court has already recognized the Final Order of the Supreme Court of India, under s. 41(1) of the Act, with the consent of both parties. This court has already declared that the effect of this recognition is that the Final Order of the Supreme Court of India is deemed to be an order of the court and enforceable as such, under s. 41(2) of the Act. The Respondent therefore requests that this court impose additional terms, as necessary to given effect to and enforce the terms of the Final Order of the Supreme Court of India, pursuant to s. 41(4).
[33] The immediate difficulty is that subsequent to this court’s recognition of the Final Order of the Supreme Court of India, the State of Illinois Circuit Court of Cook County made an order which is clearly in conflict with the Final Order of the Supreme Court of India, triggering review of s. 41(3) of the Act.
[34] I cannot accept the Respondent mother’s submission that this court can simply ignore the order made in the USA on the basis that it was obtained without due process. Although this court is extremely sympathetic to the plight of the Respondent mother, in order to compel any enforcement action by this court, one of two things must occur:
The Emergency Order of Protection made by the State of Illinois Circuit Court in Cook County dated July 11, 2022 must be set aside or amended in that jurisdiction; or
This court must conduct a best interests analysis under s. 41(3) and choose between the conflicting orders made by the two competing extra-provincial tribunals. In my view, it is not appropriate for this court to engage in such an analysis on an ex parte basis, as this only serves to perpetuate the risk of further mischief, as identified above.
[35] Given that the Respondent mother will be appearing before the State of Illinois Circuit Court of Cook County this week in an effort to remedy the relief granted by that court, I would suggest that option 1 would be the far more appropriate and expeditious procedural route.
[36] On the issue of whether or not the child must be physically present in the Province of Ontario for this court to make an enforcement order, I am satisfied by the argument made by counsel that this is not a specific prerequisite under s. 41 of the CLRA. Although such circumstances appear to be rare (neither counsel nor the court could locate any caselaw reflecting a similar fact scenario), and despite that it is preferable to refrain from weighing in on international affairs where children are not physically present in the jurisdiction, in keeping with the legislative intent to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process, and to provide for the more effective enforcement of foreign parenting orders, I am satisfied that this court has jurisdiction to impose enforcement terms to be effected ‘if and when the child enters the jurisdiction’, and that there may be circumstances where it is necessary to do so in the best interests of children. Such circumstances likely require evidence of a real likelihood that the child will enter into the country within a narrow window of time.
[37] In this case, the Respondent mother advises the court that the Applicant father’s familial and financial connections are to North America (both Canada and the USA), and India. As per the Ices Traveller History/Passage Report of the Canada Border Services Agency, the child was in this jurisdiction from June 12, 2022 to July 6, 2022. Counsel advises the court that there was a waiting period of approximately three weeks to obtain this report, such that by the time the report was received, the child was no longer in the country. It is easy to understand the Respondent mother’s frustration. Perhaps consideration should be given to whether there is an order that can be made which would require officials to flag P.S. as a child at risk at Canada’s international borders, and to expedite the release of information relating to P.S.’s location to the Respondent mother, however this issue is not before me. In the event that further relief is sought from this court, consideration should be given to service of materials upon the any third-party agencies being requested to assist in information sharing and enforcement, as there may be additional investigative and enforcement tools available to them which are unknown to the Respondent mother and the court, and the third-party agencies may have a position regarding the release of their records on an expedited basis.
[38] This court is hopeful that legal issues in the State of Illinois will be resolved, and that no further action in this jurisdiction will be necessary. In the event it is not, the Respondent mother should err on the side of appropriate notice to all interested parties.
ORDER
[39] On the basis of the above, the Respondent mother’s motion is dismissed on a without prejudice basis to be returned to court upon determination of her motions in the State of Illinois Circuit Court of Cook County (i.e. a change to or termination of the Emergency Order of Protection dated July 11, 2022), and/or on notice to the Applicant father.
The Honourable Mme. Justice L. Bale
Date: August 15, 2022