COURT FILE NO.: FS-23-107401-00
DATE: 2023 12 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LOVENEESH RUHIL
Applicant
- and -
MEDHALAKSHMI RUHIL
Respondent
Paul Dhaliwal, for the Applicant
Majid Mouzaffar, for the Respondent
HEARD: December 7, 2023
Overview
McGee J
[1] The parties are the parents of Pia Pari Ruhil aged 3 ½. This is the applicant father (“Loveneesh’s”) November 13, 2023 urgent motion that the respondent mother (“Medhalakshmi”) disclose Pia’s address to him and return her to Mississauga, Ontario, where the parents last lived together, and where he continues to live with his parents. He was given leave to place his motion on the regular list, which was heard December 7, 2023.
[2] On December 1, 2023 Medhalakshmi served a cross motion, asking that Loveneesh’s Motion be dismissed, or suspended until the matter is determined in Alberta. Because she did not have leave to schedule her motion, I will treat it as her response to the November 13, 2023 motion.
[3] The first issue to be determined is whether Ontario has jurisdiction to make parenting Orders governing Pia’s residence and care. For the reasons set out below, I find that Ontario does have jurisdiction, even though Pia was not physically resident in Ontario at the time that this Application was issued.
Background
[4] The following facts are not in dispute:
a. The parties married in Mauritius on October 20, 2014
b. At the time of their marriage Loveneesh was a Canadian citizen living in Mississauga, Ontario. Medhalakshmi was a resident of Mauritius.
c. Loveneesh sponsored Medhalakshmi to Canada. She landed in Canada in January of 2016. During their marriage life, they lived at 5365 Tree Crescent Court, Mississauga with the paternal grandparents.
d. Pia was born on May 4, 2020.
e. Medhalakshmi obtained her Canadian citizenship in November 2021.
f. The following month, Medhalakshmi indicated her strong desire that she and Pia see her family in Mauritius. Loveneesh agreed. On December 31, 2021, he purchased tickets for Medhalakshmi and Pia to travel to Mauritius from January 4, 2022 to January 25, 2022.
g. On January 22, 2022, Medhalakshmi called from Mauritius and asked to stay another month. Loveneesh agreed. The return ticket was extended to mid-February.
h. She did not return.
i. On March 5, 2022, Loveneesh received a Divorce Petition from Mauritius. He booked a flight to Mauritius departing March 21, 2022. He returned to Mississauga on March 27, 2022.
j. Upon his return, Loveneesh contacted the Canadian Central Authority for the Hague Convention. The next month he completed a Request for Return of Child. Ms. Vivian Giang was assigned as the Case Manager of the Hague Application.
k. Loveneesh returned to Mauritius from June 30, 2022 to July 10, 2022 to start proceedings. He was assigned counsel, Mr. Daerawoo. A hearing date was set for November 15, 2022.
l. Loveneesh travelled to Mauritius for a third time on November 8, 2022. Representatives from the Hague Central Authority of Mauritius attended the November 15, 2022 hearing. They advised Medhalakshmi that she was required to return Pia to Canada. Medhalakshmi gave an undertaking to return Pia to Canada within six months.
m. A hearing took place on November 15, 2022 before Justice Seetghul-Toolsee of the Supreme Court of Mauritius. Both parties were present and represented by counsel. The Oral Judgement confirms that Pia is Canadian, and it records Medhalakshmi’s sworn testimony in which she stated:
I confirm that the [father] and myself are residing in Canada and the child as well. Then I came to Mauritius with the child. I came voluntarily to Mauritius and I did not abduct the child. The child is with me since my arrival in Mauritius. I state to the Court that after the pronouncement of the provisional decree of divorce and within a period of three to six months, I will go back to Canada with the child since I have Canadian citizenship and I am entitled to work there as well.
Therefore, I am praying for a provisional decree of divorce, and I am praying for the custody of the minor child for the meantime while in Mauritius and I undertake to take the child back to Canada within a period of six months as from today and I am also agreeable that the father visits the child everyday while he is in Mauritius.
n. Loveneesh testified that he had no objection to the provisional decree of divorce, confirmed that he was seeing Pia for two hours everyday and he testified before the Court that:
I have entered a case of child abduction in Canada and since the [mother] has given an undertaking that she will return back to Canada with the minor child within a period of three to six month, I am agreeable to that and when the [mother] will be in Canada the issue of final custody will be determined there and the issue of child abduction will be thrashed out.
o. Justice Seetghul-Toolsee then gave an Oral Judgment, on consent that the provisional decree of divorce would issue, and that Pia would be in in her mother’s primary care and spend two hours a day with her father for so long as Pia was in Mauritius. The Justice took note of Madhalakshmi’s testimony and recorded her undertaking that:
Within a maximum of six months as from today, [the mother] will move back to Canada with the minor child. The other issues will be thrashed out between the parties when the [mother] is abroad.
p. On November 18, 2022, Loveneesh returned to Ontario to await Pia’s return. While waiting, he had regular video calls with his daughter. He assumed that Pia continued to reside in Mauritius.
q. Pia was not returned to Ontario.
r. A year later, Loveneesh’s lawyer brought a contempt proceeding in Mauritius on October 24, 2023. In the process of trying to serve Medhalakshmi with the proceeding, Loveneesh’s lawyer learned from the maternal grandparents that she and Pia had returned to Canada. No details were provided.
[5] Here, the parents’ narratives somewhat diverge.
Loveneesh
[6] Loveneesh states that on October 27, 2023 he received a call from a lawyer in Edmonton, Ms. Susan Lee, who advised him that she had been sending emails to him since September 20, 2023. Ms. Lee’s instructions were to resolve the parenting issues within a consent Order that the mother would have primary residency of Pia in Edmonton, Alberta and that he would have unlimited video contact.
[7] Loveneesh relates how shocked he was to learn that their daughter was in Edmonton. He was unaware of any ties that Medhalakshmi might have to Edmonton, and he states that the undertaking given in Mauritius had been clearly understood. Pia was to be returned to her place of origin: Mississauga, Ontario.
[8] Loveneesh issued this Application on November 14, 2023, the day after he brought this urgent motion. On November 13, 2023 the motion was deemed to be urgent enough that it should be heard before a Case Conference, and it was scheduled to December 7, 2023.
[9] Medhalakshmi has since issued a proceeding in Alberta in which she claims that Loveneesh is abusive, an alcoholic, a poor provider and that he isolated her from the community when she lived in Mississauga.
[10] Loveneesh denies all these allegations. He states that Medhalakshmi worked fulltime for both Nissan Canada and Subaru Canada while they were married, that they enjoyed a normal marriage with regular ups and downs, that he is a hard worker, and that Medhalakshmi had many friends in Mississauga with whom she socialized.
Medhalakshmi
[11] Medhalakshmi acknowledges in her affidavit filed in response to this motion that she did give the undertaking to return to Canada, but that she decided to relocate to Edmonton, Alberta because she was fearful of her safety, and that of Pia. She advises that she went to Alberta on May 14 of 2023, and she asks this court to consider the past eight months to be a period in which Pia’s habitual residence has changed to Alberta. She does not indicate that she had any prior connection to Alberta, but she writes about her efforts to join the Edmonton community and to train for an employment position. She is currently on benefits.
[12] Medhalakshmi states that Loveneesh was a violent alcoholic who was unpredictable. She feared for her safety during their marriage. Although she states that she called the police many times during the marriage, she attaches no police reports and does not indicate that he was ever charged. She does references charges predating her marriage that were listed by Loveneesh on a Pardon Canada application. She also attaches a supportive, unsworn email from a purported counsellor. I cannot consider the email because it is inadmissible hearsay.
Analysis
Agreement to return Pia to Canada
[13] On November 15, 2022 Medhalakshmi undertook to return Pia to Canada, and pending her return, she would have primary custody. That undertaking was incorporated into a consent Order of the Mauritius Court.
[14] The undertaking resolved the Hague Convention proceeding. The hearing did not go forward because the mother agreed to return Pia to Canada. For this reason, s. 41 of the Children’s Law Reform Act (“the CLRA”) being the section on the enforcement of extra-provincial orders is not relevant to these reasons. It was an express provision within the Mauritius Judgement that Canada would “thrash out” the issues of parenting.
[15] Medhalakshmi’s December 1, 2023 Affidavit reveals that she understood her undertaking “to return to Canada,” to be an undertaking “ to return to Mississauga Ontario.” I am satisfied that her own evidence, as well as Justice Seetghul-Toolsee’s Oral Judgement is a sufficient basis to equate a return to Canada – being the Hague Signatory Country – to a return to Mississauga, Ontario. Individual provinces and territories are not signatories to the Convention.
Jurisdiction
[16] Medhalakshmi asks that Alberta be found to be the correct jurisdiction for any court proceeding. She proposes that Loveneesh has not shown why it would be in Pia’s best interests for the proceedings to be conducted in Ontario. She argues that Alberta is better placed to hear and determine the application given the real and substantial connection to Alberta that has developed since May 2023.
[17] I will not address the written proposal that Pia’s habitual residence has changed to Alberta due to the father’s delay in issuing an Application in Ontario. In the argument on motion, it was conceded that Ms. Lee used the wrong email address, and that Loveneesh first learned that their daughter was in Edmonton on October 27, 2023.[^1] I am satisfied that Loveneesh moved with dispatch to retain Ontario counsel and bring a proceeding for Pia’s return.
[18] Pia was physically present in Edmonton on November 14, 2023 when her father issued this Application. It is uncommon for an Ontario court to take jurisdiction of a child who is not physically resident in Ontario at the commencement of the Application.
[19] Sections 22(1) and (2) of the CLRA provide:
22 (1) Jurisdiction
A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) the child is not habitually resident in Ontario, but the court is satisfied that,
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
22(2) Habitual Residence
A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
With both parents.
If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent, or acquiescence of the other or under a court order.
With a person other than a parent on a permanent basis for a significant period of time.
[20] Cases in which Ontario has taken jurisdiction over a child who is not physically present tend to be matters in which a child has been brought outside of Ontario via a form of child abduction, for example: Malpani v. Malpani, 2022 ONSC 4123 in which a child was unilaterally moved to India. Other circumstances include when a child has two habitual residences, and on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
[21] Section 22(3) of the CLRA provides that:
22(3) Abduction
The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.
Decision
[22] I find that Ontario has jurisdiction over the terms of Pia’s parenting because the parties agreed that it would. The November 15, 2022 Judgement clearly states that Medhalakshmi’s primary care was a temporary consent Order for the period when Pia was in Mauritius, and that the broader issues were to be “thrashed out” upon her return to Canada. Loveneesh relied on Medhalakshmi’s undertaking to enter into a consent Judgment. Both parents and the Mauritius court understood that Pia’s return to Canada, was a return to her last (and only) place of residence with both parents. The consent resolved the Hague Convention proceedings.
[23] If I am wrong in this, then I find that Ontario has jurisdiction because Pia was taken without consent, and her removal from Ontario does not alter her habitual residence as defined in section 22(3) of the CLRA.
[24] From January to March of 2022, when Pia was removed from Ontario, no person had decision-making responsibility. Pia was last habitually resident with both parents in Mississauga Ontario. The parties separated in March 2022 when the father received the Divorce Petition. At that time there was no separation agreement, consent, implied consent, or acquiescence by the father that Pia be resident anywhere but Mississauga, Ontario where she had extended family and a history of care and community support.
[25] When section 22(3) CLRA is invoked, a court can assert jurisdiction even when the child is not physically present in Ontario. For example, in Cook v. Rosenthal, 2021 ONSC 1653, a father successfully brought an application for the return of three children to Ontario following the mother’s unilateral departure to British Columbia. Relevant to these facts, the father in Cook was successful even in the face of allegations of family violence and the issuing of a protection (restraining) Order in British Columbia.
[26] Provincial jurisdiction over parenting issues is solely determined on statute. It does not turn on a child’s best interests. No parent in Canada is permitted to obtain a geographic advantage in a proceeding of such importance. At issue here is a preschooler’s relationship with each of her parents, her paternal grandparents and extended family, and the place where she will grow up. Perhaps it will be found that Pia’s best interests are met by giving her mother primary care in Edmonton; but it is a decision in which her father should be able to fully participate, absent the significant prejudice created by the mother’s breach of her undertaking.
[27] It is well settled law that a parent is not permitted to engage in self help. In Phillips v. Phillips, 2021 ONSC 2480 Justice Kurz ordered that a child be returned to her habitual residence after the mother had unilaterally relocated, writing at para 68 - 70 that:
[68] I also worry about the mother being able to perpetuate a new status quo that allows her to control the father's parenting time and ultimately limits the child's ability to have a close relationship with both parents.
[69] It is in [the child’s] best interests to have the opportunity to have her parents share in her upbringing. The father has proven that he is capable of participating in such an arrangement, both with his previous family and with Sophie. It is to be hoped that the mother can do the same.
[70] My decision is not intended to punish the mother for her improper resort to self-help. Rather it is intended to secure for the child the opportunity to be raised in love by both of her parents. The mother's conduct in unilaterally removing the child and then attempting to arbitrarily limit the father to day access shows the need to resolve that concern at this early stage.
Next Steps in the Proceeding
[28] I acknowledge Medhalakshmi’s claims of family violence, which are relevant to the factors in determining a child’s best interests. This motion only determines jurisdiction. The matter must now move to a Case Conference before a Dispute Resolution Officer (DRO.) DRO conferences are virtual, so both parents may participate by videoconference. The mother should anticipate any further steps in this Application to be in person, in Ontario until ordered otherwise.
[29] To be conferenced is the manner of Pia’s return to Ontario, the parenting schedule, responsibility for decision making and child support. Equalization may be an issue given section 15 of the Ontario Family Law Act. Spousal Support is no longer an available claim for Medhalakshmi because the parties are divorced, see Okmyansky v. Okmyansky, 2007 ONCA 427, and Cheng v. Liu, 2017 ONCA 104; unless Loveneesh wishes to set aside the foreign divorce, in which case, spousal support must also be determined.
[30] Orders to issue that:
A Case Conference before a Dispute Resolution Officer is to be scheduled for the next available date.
The Applicant may amend his pleadings up to January 5, 2024. The Respondent may file her Answer up to February 5, 2024.
Within seven days, the Respondent must serve a Form 35.1 Affidavit setting out Pia’s address, and particulars of any matters touching on her health, education, and general wellbeing. Because of court holiday closures over the next 10 days, the Form 35.1 need not be filed and uploaded to Caselines until January 5, 2024.
Costs
[31] Loveneesh has been the successful party and is presumptively entitled to his costs of this Motion.
[32] The parties are to exchange written Offers to Settle the payment of costs by December 29, 2023. If costs are not agreed, costs submissions are to be made in writing on the following timetable. Loveneesh’s submissions are due by January 15, 2024, and Medhalakshmi’s response is due by January 29, 2024. No reply permitted. Submissions are limited to three pages, exclusive of a Bill of Costs and copies of any Offers to Settle. Submissions are to be served, filed, uploaded to Caselines and then copied to my judicial assistant, Aleisha.Salim@ontario.ca
McGee J
Released: December 18, 2023
COURT FILE NO.: FS-23-107401-00
DATE: 2023 12 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOVENEESH RUHIL
Applicant
- and -
MEDHALAKSHMI RUHIL
Respondent
JURISTICTION MOTION ENDORSEMENT
MCGEE J
Released: December 18, 2023
[^1]: Even had she used the correct email address, the first email was dated September 20, 2023.