Court File and Parties
Court File No.: FS-19-239-00 Date: April 29, 2024 Ontario Superior Court of Justice
B E T W E E N:
SARANA, Gurnam Singh; SARANA, Balvinderjit Kaur; and SARANA, Gurnam Singh as Executor for the Estate of Mandip Bains LAGOUDIS, J. and BATEMAN, P. , for the Applicants/Respondents on Motion Applicants/Respondents on Motion
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SARANA, Kamildip Self-represented Applicant
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BAINS, Jagmit Singh MAKKAR, H. S., for the Respondent/Respondent on Motion Respondent/Respondent on Motion
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BAINS, Deesho Moving Non-Party DHALIWAL, H. , for the Moving Non-Party
Reasons on Motion
Mandhane J.
[1] S.B. (“the Child”) at the centre of this motion was born in Ontario on March 1, 2016. At the tender age of four, the Child’s world changed forever after her mother died in Ontario and her father brought her to Punjab, India for a visit. As of today, she remains in Punjab under the care of her paternal grandmother, while her father has since returned to Ontario.
[2] The Child is now eight years old and has spent equal portions of her life in Ontario and Punjab. Due to circumstances entirely beyond her control, the Child lies at the center of legal proceedings launched in both jurisdictions by grandparents who desperately want to be involved in her day-to-day life.
[3] In this context, I must decide, amongst other things, whether the paternal grandparents should have been notified about the maternal grandparents’ Ontario application for sole decision-making authority and contact time with the Child (collectively, “parenting”), and whether the parenting issues should proceed in Ontario or India.
Factual Overview
[4] This matter has a long and complicated history. Here, I outline only the facts necessary to decide this motion.
Family History
[5] Mandip Bains (“the Mother”) and Jagmit Singh Bains (“the Father”) were married on April 14, 2014. After marriage, they lived with Gurnam Singh Sarana and Balvinderjit Kaur Sarana (“the Maternal Grandparents”) and the extended maternal family at the Maternal Grandparents’ home in Brampton.
[6] The Child was born on March 1, 2016 in Brampton. Her parents separated on April 2, 2017, when she was 13 months old. After that, the Child lived with her Mother and the Maternal Grandparents, and saw her Father regularly. The Mother passed away on August 29, 2019 when the Child was four years old. As of September 8, 2019, the Child began living with her Father in Brampton.
The Maternal Grandparents Commence Proceedings in Canada
[7] On or about October 23, 2019, the Maternal Grandparents commenced an Application against the Father seeking joint decision-making responsibility, and primary residency of the Child. The Application was never served on the Father because the Father pleaded with the Maternal Grandparents to enter into settlement discussions.
[8] In January 2020, the Child, who was then four, travelled to India with the Father to meet her paternal family for the first time, including Deesho Bains (“the Paternal Grandmother”) and the late-paternal grandfather (“the Paternal Grandfather”). After the pandemic restrictions lifted slightly, the Father returned to Canada in July 2020, while the Child remained in India with her Paternal Grandparents.
[9] The Maternal Grandparents amended their Application on October 21, 2020, to indicate that the Child has been living with the Paternal Grandparents as of about August 2, 2020, and to seek return of the Child to Canada from India (“Amended Application”). This Amended Application was never served on the Paternal Grandmother. After the Child had been in India for about a year, on June 17, 2021, the Maternal Grandparents obtained an order for substituted service and served their Amended Application on the Father via email.
[10] The Father travelled to India between November 2021 and February 2022 to see the Child but did not return to Canada with her. He says that the Paternal Grandmother was not prepared to travel back to Canada with the Child at that time because the Paternal Grandfather was ill (he passed away in March 2022).
[11] The Father served and filed his Answer on March 24, 2022. He claimed that the Child was not habitually resident in Canada such that this Court did not have jurisdiction in relation to parenting. In the alternative, he sought sole decision-making responsibility. His plan of care was for the Child to return to Canada, and for the Paternal Grandmother and maternal aunt to live with him and take care of the Child. The Answer was not served on the Paternal Grandmother.
The Father and Maternal Grandparents Obtain a Final Order on Consent
[12] The Father travelled to India between January 9 and April 28, 2023 to visit the Child but did not bring her back to Canada when he returned.
[13] After attending a case conference, the Maternal Grandmother and Father entered into Minutes of Settlement dated February 9, 2023 (“the Minutes”). The Minutes contemplated a comprehensive settlement of all issues, including jurisdiction, decision-making responsibility, parenting time, and property.
[14] On March 9, 2023, the Maternal Grandparents brought a 14B motion on consent to have the Minutes made into a final order (“the 14B motion”). On April 20, 2023, Justice Bloom considered the 14B Motion and asked that the Mother’s estate and Kamaldip Sarana (“the Maternal Uncle”) be added as parties so that the property terms would be binding on them. Neither party raised the issue of the Paternal Grandmother being added as a party to the settlement. On May 5, 2023, the Maternal Grandparents and the Father entered into revised minutes of settlement that included the Mother’s estate and the Maternal Uncle (“the Revised Minutes”).
[15] On May 19, 2023, the Revised Minutes were made into a final order by Miller J. (“the Final Order”). The Final Order states that the Father attorned to the jurisdiction of Ontario, required the Father to return the Child to Ontario, and gave the Maternal Grandparents generous parenting time. The Final Order made no reference to the Paternal Grandmother.
[16] The Child was never returned to Ontario. On May 13, 2023, the Father advised the Maternal Grandparents that the Paternal Grandmother was ill and that she could not travel to Canada with the Child at that time. He said that he would return the Child to Canada in August 2023, before the new school year.
[17] The Maternal Grandparents brought a motion to enforce the Final Order on July 13, 2023 (the “Enforcement Motion”). That motion remains outstanding before the court, pending the determination of this motion to set the Final Order aside.
The Paternal Grandmother Commences Proceedings in India
[18] After learning about the Final Order and Enforcement Motion, the Paternal Grandmother refused to release the Child to the Father to travel back to Canada. She says that she was never consulted about the parenting of the Child. By that time, she was also unable to travel to Canada because of her health conditions. The Paternal Grandmother commenced parenting proceedings in India and served the Father on July 26, 2023. The Paternal Grandmother sought an injunction restraining the Father from removing the Child from her care (which was denied), and an order for guardianship over the Child. The matter is returning before the Indian court on May 6, 2024. The parties all agree that the India proceedings are at a preliminary stage.
[19] Most recently, the Father visited the Child from November 2, 2023 to February 19, 2024, but again did not bring the Child back to Canada when he returned. He has now formed the impression that the Child would like to stay in India with the Paternal Grandmother.
The Paternal Grandmother’s Motion Before Me
[20] On July 31, 2023, the Paternal Grandmother brought a motion before this Court seeking to set aside the Final Order, and for a declaration that Ontario does not have jurisdiction over the parenting dispute. On August 3, 2023, Shaw J. held that the Court had to determine the Paternal Grandmother’s standing before her motion could be heard on the merits. Justice Dennison granted the Paternal Grandmother leave to bring this motion in her endorsement dated August 23, 2023 (“the Leave Motion”). The Maternal Grandparents oppose the relief sought by the Paternal Grandmother. The Father does not take a position on the outcome of the motion but gave evidence and made submissions. The Maternal Uncle does not take a position on the motion.
[21] The parties appeared before me for a four-day hearing on the Grandmother’s motion. The Paternal Grandmother, Father, and Maternal Grandfather all gave evidence in chief via affidavit and were cross-examined. Both parties objected to portions of the opposing witnesses’ affidavits. For reasons given on the record, I excluded evidence that went solely towards to the Child’s best interests because I am not tasked with determining parenting. Second, I ruled that evidence about the extent of the Paternal Grandmother’s knowledge about the Ontario proceedings prior to the Final Order being made was also not in issue because Dennison J. found at paragraph 36 of the Leave Motion that the Paternal Grandmother did not have notice of the parties’ agreement that required the Child to return to Canada. Justice Dennison wrote that she accepts the father’s affidavit about when he told his mother about the Final Order; the father’s affidavit said that he told her after the Maternal Grandparents brought enforcement proceedings in Ontario (i.e. sometime after July 13, 2023) The evidence before me shows that the Father’s counsel only sent a copy of the Final Order to the Paternal Grandmother’s counsel on July 24, 2023.
[22] As of the hearing before me, the Child has been in India for four years. She is enrolled in school, has a family doctor, and has friends close by. Her Father has visited her three times. She has regular videocalls with her Father and Maternal Grandparents, but has not seen her Maternal Grandparents in person since January 2020.
Issues
[23] The issues before me are as follows:
a. Should the Final Order be set aside because the Paternal Grandmother was not put on notice? b. Does Ontario have jurisdiction over parenting of the Child?
Short Conclusion
[24] For reasons that follow, I find that:
a. Paragraphs 1 to 15 of the Final Order related to parenting shall be set aside because the Paternal Grandmother was not put on notice. b. Ontario has jurisdiction over the parenting of the Child.
Analysis
[25] In the “Leave Motion,” Justice Dennison made a number of findings that are relevant to the determination of the motion before me. First, while noting that Rule 14 of the Family Law Rules, O. Reg. 114/99 “applied in a slightly different context,” Justice Dennison found that the Paternal Grandmother was a person who had an interest in the case or was “affected” by the case which favoured granting her standing to bring this motion: paras. 29-32.
[26] Second, Justice Dennison found that the Paternal Grandmother had “care and control” of the Child because the Child was in her exclusive care between July 2020 and November 2021 (15 months), and between February 2022 and January 2023 (10 Months).
[27] Third, Justice Dennison found that the Paternal Grandmother did not have notice of the parties’ agreement requiring the Child to be brought back to Canada, stating at para. 36 that:
…I am satisfied that the paternal grandmother did not have notice of the agreement reached in the Minutes of Settlement that S.B. was to return to Canada. I accept the information contained in the father's affidavit about when he told his mother that S.B. was to return to Canada. The information provided by the maternal grandparents does not directly contradict this. Their evidence as to what the paternal grandmother knew was vague and imprecise.
[28] Finally, Justice Dennison further found that the Paternal Grandmother had information that was relevant to the Child’s best interests (para. 37).
[29] Bearing these findings in mind, I now turn to the matter before me.
Should the Final Order be Set Aside Because the Paternal Grandmother Did Not Receive Notice of the Parenting Application?
[30] The primary objective of the Family Law Rules is to deal with cases “justly,” which means ensuring the process is fair, expeditious, and appropriate in terms of the importance and complexity of the issues and the need to give resources to other cases as well: rr. 2(2), 2(3).
[31] Rule 25(19)(d) states that, on motion, I may change a consent order that was made “without notice.” The case law in Ontario confirms that I have broad discretion to make an appropriate remedy under Rule 25(19), including setting aside the order, varying it, or adding to it: Braun v. Braun, 2022 ONSC 7031, at para. 18.
[32] The Maternal Grandparents and Father are clearly parties pursuant to Rule 7(1). The Paternal Grandmother is not a party because neither the Maternal Grandparents nor the Father named her as a respondent nor brought a motion to add her as a party. She was never served with the Application, Amended Application, Answer, or 14B Motion, and she has never brought a motion to be added as a party. I reject the submission that Justice Dennison’s order made her a party. It says no such thing.
[33] Therefore, the salient question before me is whether the Paternal Grandmother ought to have been named as a party by the Maternal Grandparents and/or the Father, such that she was entitled to notice about the parenting claims. Rule 7(3) requires that the parties name as a respondent “every other person who should be party to enable the court to decide all the issues in the case.” Rule 7(4) states that, where the claims relate to parenting, “every other person who has care and control of the child involved… shall be named as a party, unless the court orders otherwise.”
[34] I find that the Paternal Grandmother’s interest in the case crystallized when she had exclusive day-to-day “care and control” of the Child (i.e., as of June 2020 per Justice Dennison). From that point onwards, the Paternal Grandmother should have been notified about the matter proceeding in Ontario. She clearly had information relevant to the Child’s best interests. The Paternal Grandmother was entitled to notice of the Amended Application, the Father’s Answer dated March 24, 2022, and the 14B Motion dated March 9, 2023. Indeed, in their Amended Application dated October 21, 2020, the Maternal Grandparents indicated that the Child had been living with the Paternal Grandparents as of about August 2, 2020, but did not serve the Amended Application on her.
[35] The Court of Appeal for Ontario in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561, at paras. 48-49, set out the factors that I should consider when determining whether to set aside a default judgment, including:
a. Whether the motion to set aside the default judgment was brought promptly following the moving party’s discovery of the default judgment; b. Whether the moving party has established that there exists a plausible excuse or explanation for the default; c. Whether the moving party has set forth sufficient evidence to establish that there is an arguable case to present on the merits d. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the Respondent should the motion be allowed; and e. The effect of any order the motion judge may make on the overall integrity of the administration of justice.
In Mountain View Farms, the Ontario Court of Appeal explained at para. 50 that, "[t]hese factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.” A number of family law cases have cited the Mountain View Farms test: Lin v. Ha, 2017 ONSC 6917, at para. 9; E.S.R. v. R.S.C., 2019 ONCJ 381, at para. 68.
[36] Applying the test in Mountain View to these facts, I find that the Paternal Grandmother was never served, such that she unaware of the nature of the proceedings in Ontario until around July 2023. Because the Paternal Grandmother never received notice about the litigation prior to the Final Order being made, she was unable to either file an Answer, or bring a summary judgement motion pursuant to Rule 16(12)(c) to challenge the jurisdiction of this Court. As a summary judgment motion is a pre-trial motion, it was not available to her as a remedy after the Final Order was made.
[37] The Paternal Grandmother acted with diligence when she learned about the existence of the Final Order by launching proceedings before this Court to challenge its jurisdiction on July 31, 2023, and before the Indian courts for sole decision-making authority over the Child. She certainly has important information about the Child’s best interests given that the Child has been in her care for four years.
[38] While there is clearly prejudice to the Maternal Grandparents by setting aside the Final Order, I find that this is outweighed by the importance of the parenting issues being decided on the merits with full participation by everyone with relevant information and an interest in the outcome. It does not make sense that the Paternal Grandmother be denied an opportunity to make her views known by filing an Answer—especially when one of the parties are themselves grandparents.
[39] I am prepared to set aside paragraphs 1 through 15 of the Final Order pursuant to Rule 25(19)(d). I am not prepared to set aside the entire Final Order as requested by the Maternal Grandparents in their submissions before me. First, I note that the Paternal Grandmother’s Notice of Motion asks me to set aside paragraph 1 to 15 of the Final Order, which relates to “Jurisdiction,” “Decision-Making Responsibility,” “Contact,” and “Travel.” The Paternal Grandmother does not ask me to set aside the terms of the Final Order related to “Property.” Second, the parties agree that the Paternal Grandmother does not have any interest in the property issues, and the Paternal Grandmother testified as much. On the property issues, the interests of justice favour certainty of contract. Moreover, limiting the outstanding dispute before the court to the parenting issues allows this case to proceed more expeditiously.
Does Ontario Have Jurisdiction Over the Parenting Orders Related to the Child?
[40] Having set aside paragraphs 1 through 15 of the Final Order for lack of notice on the Paternal Grandmother, I now consider whether Ontario can exercise jurisdiction over the parenting dispute or whether the matter should be decided in India.
[41] Part III of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“the CLRA”) governs parenting issues. In summary, the purposes of Part III of the CLRA are:
- to make sure that parenting applications are decided in the best interests of the child (s. 19(a));
- to recognize that concurrent jurisdiction is to be avoided, such that Ontario should generally decline jurisdiction in favour of a tribunal in a jurisdiction in which the child has a closer connection (s.19(b));
- to discourage the abduction of children (s. 19(c));
- to provide for more effective enforcement of parenting and contact orders, including those made in another jurisdiction (s. 19(d)).
[42] Part III contemplates differing roles for parents and others who may be interested in a child’s care. The child’s parents are generally entitled to decision-making responsibility over their child (s. 20(1)). However, the CLRA also contemplates grandparents applying to the court for decision-making responsibility (s. 21(2)), and a contact order (s. 21(3)) if they wish to take care for the child during a specific period of time (s. 18(1)).
[43] Section 22 of the CLRA deals with jurisdiction. The Court of Appeal in Los v. Ross, 2024 ONCA 122, at para. 29, quoting Dovigi v. Razi, 2012 ONCA 361, 10 O.R. (3d) 593, at paras. 9 to 13, leave to appeal refused, stated the following:
The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.
First, under s. 22(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is "habitually resident" in Ontario.
Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met.
Third, under s. 23, a court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in the Act.
Fourth, the court may exercise its parens patriae jurisdiction, which is specifically preserved by s. 69 of the CLRA.
[44] The parties agree that the only issue before me relates to the application of s. 22(1)(a), which revolves around a factual determination of the Child’s “habitual residence.” Consistent with the language in the statute, the Court in Los further clarified at para. 38 that, “Section 22(1)(a) of the CLRA provides that the Ontario court has jurisdiction if ‘the child is habitually resident in Ontario at the commencement of the application for the order’”, and stated that implicitly this means that “conduct following the beginning of the application is presumptively not relevant to this determination” (emphasis original).
[45] Habitual residence is defined in s. 22(2):
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.
[46] In Los at para. 31, the Court of Appeal stated that, in addition to the factors set out in s. 22(2), the test for determining “habitual residence” developed pursuant to the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), as interpreted in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, applies equally to determining a child’s habitual residence under the CLRA. This is notable because Los, like the case before me, did not involve any wrongful removal.
[47] In Balev, the Supreme Court held that, in determining a child’s habitual residence under Article 3 of the Hague Convention, courts should adopt a “hybrid approach” that looks to “all relevant considerations arising from the facts of the case at hand”, including the child’s situation and the parents’ intentions, especially where the child is an infant: at paras. 42-47. The court emphasized that “there is no legal test for habitual residence and the list of potentially relevant factors is not closed”: at para. 47. In other words, each case must be decided on its own facts and circumstances.
[48] The parties agree that the Application was commenced on October 23, 2019. Under cross-examination, the Father admitted that he was aware through his counsel that the Maternal Grandparents had commenced proceedings as of October 2019 but resisted being served because he wished to negotiate a settlement. At the time the Application was commenced, it is uncontroversial that the Child was living in Ontario with her Father. Indeed, it has been the intention of the parents since birth that the Child live and be raised in Ontario. On this basis alone, I find that Ontario has jurisdiction over the matter. I do not agree with the Paternal Grandparent that the proper date for determining “habitual residence” for the purposes of jurisdiction is the date of the Amended Application, October 21, 2020 (i.e., when the Child was living in India). There is no caselaw to support this position.
[49] On the totality of the evidence, and considering the Balev factors, I find that Ontario can properly exercise jurisdiction over the parenting issues concerning the Child. The Child was living in Ontario when the Application was filed. The Father never intended for the Child to live in India permanently. The Father admitted that, even after the Paternal Grandmother was unable to travel to Canada because of her cancer relapse—sometime around March or April 2023—his plan was still to return to Canada with the Child. In her evidence before me, the Paternal Grandmother stated that the plan remains for the Child to return to Canada, ideally when she is better and able to travel to Canada as well. The Paternal Grandmother admitted that she had only launched a legal proceeding in India seeking guardianship of the Child to buy her more time with the Child in India (i.e., as a delay tactic).
[50] Like the situation in Hsu v. Liu, I also find that the Father has not ceded decision-making authority to the Paternal Grandmother. While the Child has since been attending school, establishing peer and family relationship, and obtaining medical treatment in India for the past four years, I find that major decisions about the Child’s education and health have always been made by the Father. The fact that the Father is in Canada and has retained primary decision-making authority of the Child favours Ontario being the proper jurisdiction to determine the matter. The other parties are only grandparents after all. The Father will most likely be involved in the Child’s life much longer, and his evidence will be critical to determining the Child’s best interests. He has been represented by counsel in Ontario since the earliest stages of this proceeding, and he agreed to attorn to the jurisdiction of Ontario. This supports the view that the Child is habitually residence in Ontario.
[51] On the whole I find that Ontario has jurisdiction over the parenting dispute. Even so, I may decline to exercise my jurisdiction if I am of the opinion that “it is more appropriate for jurisdiction to be exercised outside Ontario”: s. 25, CLRA. There are completing lines of cases regarding the appropriate test under s. 25. However, the parties before me all agree that the appropriate test is the “balance of convenience” test for the reasons articulated by Justice Agarwal in Kalra v. Bhatia, 2024 ONSC 1443, at para. 85. In Kalra, the Court found that the “balance of convenience” test is more appropriate because it is child focused and includes a consideration of the Child’s connection to each jurisdiction: para. 85. I agree with Justice Agarwal.
[52] Here, the Child is a Canadian citizen that has a connection to both jurisdictions. She has lived in both jurisdictions, has family in both jurisdictions, and there are court proceedings in both jurisdictions. The strongest argument in favour of declining jurisdiction is because the Child is currently in India, such that the Indian courts have access to the most up-to-date information about the Child. I do not find this to be a compelling argument based on my experience over the course of this motion. The Paternal Grandmother was able to testify by video, with the assistance of accredited interpreters who provided simultaneous translation between Punjabi and English. Moreover, the Paternal Grandmother produced Indian medical and educational records in their original English versions. In short, running a trial where the parties are split between Ontario and India is certainly possible in Ontario. On the other hand, If the Indian courts do not have these resources, the Maternal Grandparents would have to travel to India to participate in the litigation which is much more onerous.
[53] The parties all agree that the Child’s views and preferences will be a contentious issue when deciding her best interests because they disagree on whether the Child wants to stay in India long term. The CLRA requires this Court to consider the Child’s views and preferences when making parenting orders and has processes in place to ascertain the Child’s views via the Office of the Children’s Lawyer. My understanding is that the Child has access to a laptop, speaks English and could engage in interviews and/or instruct counsel in English. I have no idea whether India will consider the Child’s views and preferences or whether it has a mechanism to do so. This weighs in favour of Ontario taking jurisdiction.
[54] Finally, the India proceeding is at a much earlier stage when compared to the Ontario proceeding. I am confident that Ontario can bring finality to the parenting issues on an expedited timeline, even more so here where the Maternal Grandmother has admitted to using the Indian proceeding as a stall tactic. Having the matter proceed in Ontario is ultimately in the Child's long-term best interests and offers the best hope for bringing stability and certainty to an unfortunate and uncertain situation.
Costs
[55] Given that success was equally divided, I decline to order costs.
Next Steps
[56] The parties shall contact the Trial Coordinator’s office to schedule a case management conference before me on an urgent basis, and no later than 14 days from receipt of these reasons:
a. The parties shall endeavor to agree on the terms of an order outlining the next steps and timelines for the filing of materials; b. The parties shall jointly serve, file, and upload a Trial Management Endorsement Form at least 2 days before the case management conference.
[57] It is urgent that the parenting issues be resolved as quickly as possible.
[58] I remain seized of this matter pending scheduling of the next hearing date.
Mandhane J. Released: April 29, 2024