BACKGROUND

The Applicant Father, Ishan Kalra and the Respondent Mother, Shruti Bhatia were married in India in February 2017. The parties moved to Canada with their child, “SK” who was born in India in December 2017. Less than three months after their move to Canada, Mr. Kalra and Ms. Bhatia separated. In December 2022, the Father moved out of the matrimonial home. He stated that he did not have much money and he was not “mentally stable”.

When the Father tried contacting the Mother through a mutual friend, she told the Father that he was “dead” to her. Subsequently, the Mother had sent a notarized declaration which suggested that she had obtained a restraining order against the Father, restraining him from contacting her and SK.

Unbeknownst to the Father, the Mother took SK to India where SK remained until trial. The Mother returned to Canada. Frightened by the threat of the restraining order, he believed that if he tried to see SK, he would be arrested.

After saving enough money, the Father hired a lawyer. When his lawyer checked the court file, they discovered that there was no restraining order against him.

An application has been issued by the Father to which the Mother has not provided an answer.

ISSUES

1. Whether SK was habitually resident in Ontario or India when this application was started.

ANALYSIS

Legislative Framework

In the Father’s application, he is effectively seeking a “chasing order”. This comes from Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction and describes an order for “return of the child” when they have been “wrongfully removed or retained”.

The caveat is that India is not a party to the Hague Convention and, therefore, the Father had to rely on the Children’s Law Reform Act (CLRA) and the court’s parens patriae jurisdiction. This is a doctrine that allows the court to stand in place of the parents in making decisions that will affect a child’s well-being regardless of what parents have previously decided.

Pursuant to section 22(1)(a) of the CLRA, a court shall only exercise jurisdiction to make a parenting order if the child is habitually resident in Ontario at the start of the application for that order.

According to section 22(2) of the CLRA, a child is habitually resident in the place where the child resided in whichever occurred most recently:

1. With both parents.
2. 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.
3. With a person other than a parent on a permanent basis for a significant period of time.

The court cites section 22(3) of the CLRA by outlining that the withholding or removal of a child without consent of all persons having decision-making responsibility over 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.

Application of the Law

1. Consent

With respect to SK’s habitual residence, the Mother argued that the Father consented to the move to India. This was based on his general text messages that going to India would be beneficial for SK and other alleged statements he made. The court cited Dunman v Dunman 2017 ONCJ 629 by stating, “Unequivocal consent to such a move must be clear and concise, not based on inferences.” The court found that the Father did not consent to SK’s move.

2. Acquiescence

The Mother argued that the Father acquiesced in SK moving to India with her and relied on the fact that he did not contact SK after he moved out of the matrimonial home in December 2022. The court found that the Mother tricked the Father into believing he would face legal repercussions if he contacted the Mother or their child since it took over a full year for the Mother to confirm that there was no restraining order against him. Therefore, the Father did not acquiesce to the move.

3. Habitual Residence

According to Zafar v Azeem 2024 ONCA 15, the test for habitual residence of the child under the Hague Convention in Office of the Children’s Lawyer v Balev 2018 SCC 16 is the same as the test in the CLRA: courts should use a “hybrid approach” which considers “all relevant considerations arising from the facts of the case at hand”.

The Mother argued that the Father forced the family to move to Canada, and thus, her position is that SK never “resided” in Ontario. After considering the circumstances of the child, the fact that the Mother came to Canada on a student visa, and her demonstrated interest in becoming a permanent resident/citizen in Canada, the court found that the move to Canada was a familial decision. This means that the court has jurisdiction to make a parenting order with respect to SK.

CONCLUSION

The court found that it was not appropriate to decline jurisdiction over this matter, and therefore, decided that the Mother unlawfully abducted SK, in violation of Canadian law. Although the court was not prepared to make a “chasing order” per the Father’s request, they deemed the appropriate remedy to be an order that the Mother file an Answer and a Form 35.1 Affidavit in response to the case at hand.