COURT FILE NO.: FS-23-107401-00 DATE: 2024-05-17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LOVENEESH RUHIL, Applicant AND: MEDHALAKSHMI RUHIL, Respondent
BEFORE: Justice L.B. Stewart
COUNSEL: P. DHALIWAL, for the Applicant S. SANDHU, for the Respondent
HEARD: February 27, 2024, by Videoconference
Endorsement
Overview
[1] Motion by applicant/father for return of four year old child from Alberta to Ontario. The court previously ruled that it had jurisdiction over the child.
[2] The applicant/father seeks an order that the child be returned to his care or, in the alternative, that the parties have shared parenting time in a 2-2-3 schedule to be phased in gradually.
[3] This endorsement should be read in conjunction with the court’s findings re: jurisdiction dated December 18, 2023.
Facts and Procedural History
[4] The applicant/father is Loveneesh Ruhil (Mr. Ruhil/father). The respondent/mother is Medhalakshmi Ruhil (Ms. Ruhil/mother).
[5] The parties married in Mauritius on October 20, 2014. At that time, Mr. Ruhil was a Canadian citizen, living in Mississauga and Ms. Ruhil was a resident of Mauritius.
[6] Mr. Ruhil sponsored Ms. Ruhil and she landed in Missisauga, Ontario in January, 2016.
[7] Upon Ms. Ruhil’s arrival in Canada, the parties lived at 5364 Tree Crescent Court in Mississauga.
[8] There is one child of the marriage, Pia Pari Ruhil, born May 4, 2020.
[9] Ms. Ruhil obtained her Canadian citizenship in November, 2021.
[10] In January, 2022, with the consent of Mr. Ruhil, Ms. Ruhil and Pia travelled to Mauritius. They were supposed to return in mid-February. Ms. Ruhil and Pia did not return.
[11] Mr. Ruhil had to initiate Hague Convention proceedings. On November 15, 2022, Ms. Ruhil undertook to return Pia to Canada within six months. This court previously found that Ms. Ruhil understood this undertaking to mean that she would return Pia to Missisauga. She did not do so. Instead, Ms. Ruhil took Pia to Edmonton, Alberta in May, 2023. Mr. Ruhil was not aware that Pia was in Alberta (believing her to still be in Maruitius) until October, 2023.
[12] Pia has not seen her father in person since November, 2022. In the Fall of 2023, Ms. Ruhil offered Mr. Ruhil unlimited video time with the child.
[13] Mr. Ruhil brought an urgent motion before this court. On December 18, 2023, this court found that Ontario had jurisdiction and directed the parties to attend a DRO conference. Ms. Ruhil was also ordered to disclose Pia’s address and information regarding her health, education and general wellbeing within seven days.
[14] Ms. Ruhil recently sought a stay of the Ontario jurisdiction decision from the Alberta Superior Court. During this motion, Mr. Ruhil advised that the Alberta court dismissed the stay application was dismissed and the parties were awaiting an endorsement.
[15] At the outset of this motion, Ms. Ruhil’s counsel sought an adjournment to conduct cross examinations. During submissions, Ms. Ruhil’s counsel modified his position and indicated that he wished to proceed with argument.
[16] Finally, at the conclusion of the motion, I reserved my decision. Ms. Ruhil gave an undertaking not to move the child from Edmonton and not to take any steps to circumvent the Ontario court orders pending the release of my decision.
Adequacy of Evidence
[17] Ms. Ruhil’s only material filed on this motion was an affidavit from her. It appended several unsworn communications from purported counsellors, caregivers and friends. Each communication was unsworn hearsay evidence and cannot be considered for the following reasons:
a. Each writer should have sworn a separate affidavit;
b. In the case of many of these communications, the writers expressed opinions which fell into the category of expert opinions;
c. Ms. Ruhil was warned about this issue in the court’s decision dated December 18, 2023 [1]. Indeed, the very evidence which was rejected by the court on December 18, 2023 was refiled in Ms. Ruhil’s affidavit on this motion, albeit in a slightly different format [2].
[18] Further, in the December 18, 2023 decision, the court noted Ms. Ruhil’s statement that she called the police many times during the marriage but did not attach police reports and did not indicate that he was charged. In her affidavit on this motion, Ms. Ruhil attaches only one police report from August 30, 2021. The police attended at the home and spoke to both parties. Ms. Ruhil reported that Mr. Ruhil yelled at her while holding Pia. and she became scared:
She stated that she was not hit, pushed or harmed physically. It was also mentioned by both parties that there’s been ongoing arguments regarding divorce which fueled the argument in this occurrence. No parties alleged any criminal offence and Police do not have ground to believe a criminal offence occurred…. [3]
[19] Finally, Ms. Ruhil states that she provided a detailed account of the abuse to her family physician in Mississauga, but she does not provide any records.
Law/Analysis
The Starting Point
[20] One parent does not outrank another. As stated by the court in Rifai v. Green:
The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights and equal authority over decisions in a child’s life. In the absence of a formal agreement tor court order, neither parent has the right to unilaterally impose major changes in a child’s life. Neither parent has the right to unilaterally interfere or impede the other parent’s contact or role in the child’s life [4].
Has a new status quo been created?
[21] Ms. Ruhil argues that there is a new status quo in that she has been with her daughter for the last two years, that she did not manufacture the situation and she had a legitimate reason to go to Alberta. She also submits that Pia is thriving. Assuming that is correct, the practical reality is that Pia is still being denied a relationship with her father except by video.
[22] I find that Ms. Ruhil cannot rely on an allegedly new status quo when she engaged in extreme self-help remedies on more than one occasion: first, not returning from Mauritius; second, breaching her undertaking by not returning to Ontario and going to Alberta; third, by not informing Pia’s father that they were in Alberta.
[23] The court will not reward self-help, particularly when such self help may have potentially jeopardized the best interests of a child [5].
[24] Further, I find Mr. Ruhil acted promptly as soon as he became aware of Pia’s presence in Alberta. There were no delays on his part.
Safety of Child
[25] Ms. Ruhil’s submissions regarding the safety of Pia were contradictory. On one hand, her affidavit states that she “strongly believe[s] that the Applicant Father would go to any length to harm me and the child out of sheer vindictiveness against her. [6]”
[26] In contradiction to her affidavit, Ms. Ruhil indicated during oral argument that she was flexible about parenting time and submitted that Mr. Ruhil can come to Alberta for supervised access for a period of time, after which he would have unsupervised access, which would involve him flying to Alberta, picking up Pia, flying her back to Ontario and then returning her to Alberta at the end of the visit.
[27] In oral argument, Ms. Ruhil asserted there was no prejudice to Mr. Ruhil to fly travel between Ontario and Alberta in order to see P, or, in the alternative, for Mr. Ruhil to relocate to Alberta. Ms. Ruhil’s oral submissions included an offer to undertake to pay for P’s flights back and forth to Alberta. At another point in the oral submissions, Ms. Ruhil stated that Mr. Ruhil could reduce his child support obligations to account for the costs of the flights.
[28] With respect, these submissions strain credulity:
a. Ms. Ruhil clearly has no real concern for P’s safety with her father if she envisions Mr. Ruhil having unsupervised visits and flying the child back and forth between Ontario and Alberta.
b. Further, although Ms. Ruhil states that she moved to Alberta for her own safety, she is clearly willing to have Mr. Ruhil reside in the same community as she submits that he should relocate to Alberta from Ontario in order to see his child.
c. Ms. Ruhil’s evidence is that she is currently in receipt of social benefits, is looking for employment and asked the court to consider modest means in the January 31, 2024 costs award [7]. That is not consistent with an undertaking to pay for Pia’s flights to visit her father, nor is it consistent with reduced child support obligations.
The Ultimate Question
[29] “Ultimately, this court must focus on the best interests of the child, while safeguarding the process from manipulation and unfairness” [8].
[30] The Ontario Court of Appeal observed that the policy behind discouraging child abduction and requiring a summary return to habitual residence reflects the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child [9].
[31] In the 2020 case of Sandhu v. Kaur, 2020 ONSC 7308, the court ordered the return of a child to Ontario despite the fact that the father was facing criminal charges for family violence and, at the time of the decision, the father was prohibited from communicating with the child so the court could not grant access until after a case conference [10].
[32] I find that it is in the best interests of Pia to return to Ontario. She has been denied any consistent in person parenting time with her father since February, 2022, over half of her short life. Ms. Ruhil has not established, on a balance of probabilities, that parenting should be limited to long distance parenting [11]. Even if that conclusion is incorrect, Ms. Ruhil has failed to meet the evidentiary standard because her actions were extreme and violated Pia’s right to a relationship with both of her parents. Ms. Ruhil’s actions raise the spectre of her trying to avoid the legal process entirely [12].
[33] The court has the jurisdiction to order that Pia be returned to Ontario, but does not have the jurisdiction to compel Ms. Ruhil to return to Ontario.
[34] I grant Mr. Ruhil parenting time from Thursday June 27, 2024 until Friday September 20, 2024, during which time he is granted temporary decision making responsibility for Pia’s education and medical care. Mr. Ruhil is to fly to Alberta no later than Wednesday June 26th to meet with Pia at Ms. Ruhil’s home, or a place to be agreed upon, to receive Pia’s personal belongings for the summer, and to learn from the mother any necessary incidents of care. Pia is to spend the evening of Thursday June 27th with her father, and then remain in his care for the flight and return to Ontario.
[35] If Ms. Ruhil does not relocate to Mississauga, Mr. Ruhil may apply to this court for primary residence and final decision making.
[36] Ontario has jurisdiction over this child. The parties shall therefor attend a settlement conference in August, 2024 before a DRO to attempt to resolve Pia’s parenting schedule. If there is no resolution the matter may be set to Assignment Court to seek an urgent trial. Leave is given for the parties to attend proceedings via video conference except for a trial, which will be in person.
[37] Ms. Ruhil is to confirm, in writing, by that Pia will transfer to Mr. Ruhil’s care no later than June 27, 2024. If she does not confirm in writing, Mr. Ruhil shall apply to the Alberta Court for any necessary enforcement steps to have Pia placed in his care in advance of the transfer date of June 27, 2024.
Conclusion
[38] I therefore make the following orders:
a. Pia Pari Ruhil, born May 4, 2020, shall be transferred to her father’s care in Alberta by no later than June 27, 2024;
b. Mr. Ruhil shall have parenting time and temporary decision making responsibility for Pia’s education and medical care between June 27 and September 20, 2024;
c. If Ms. Ruhil does not confirm in writing, by June 17, 2024, that Pia will transfer to Mr. Ruhil’s care no later than June 27, 2024, Mr. Ruhil shall apply to the Alberta Court for necessary enforcement steps;
d. The parties will arrange and urgent DRO conference to address issues of parenting time. The parties have leave to conduct this case conference via video;
e. The parties will upload this endorsement to Caselines;
f. The parties will file this endorsement in the Alberta proceedings;
Alleged Breaches of Ontario Court Endorsement dated December 18, 2024
[39] Mr. Ruhil alleges that Ms. Ruhil is in breach of the prior decision on jurisdiction in two ways:
a. She has not paid the costs award; and
b. She did not disclose the child’s address within seven days of the endorsement.
[40] As this was not an enforcement motion, I make no ruling on these alleged breaches. Mr. Ruhil has leave to bring a motion on this issue if necessary.
Costs
[41] Mr. Ruhil is the successful party on this motion and is therefore presumptively entitled to costs. The parties are encouraged to agree on costs. If they will not, costs submissions are to be served, filed, uploaded, and sent to my attention at BramptonSCJCourt@ontario.ca on the following timetable:
a. Mr. Ruhil’s submissions by July 15, 2024, by 4pm;
b. Ms. Ruhil’s submissions by August 15, 2024, by 4pm.
[42] Submissions will include a bill of costs, any offers, authorities and submissions (submissions limited to three pages, double spaced, 12 point font).
L.B. Stewart J. Released: May 17, 2024