BACKGROUND

The parties were married in 2014 and had one child in 2016. They lived together with the child’s maternal grandparents in Brampton, Ontario. After the mother passed away in 2019, the child began living with her father (“the Respondent”), in Brampton. In 2019, the child’s maternal grandparents (“the Applicants”) commenced an action against the Respondent for joint decision-making responsibility and primary residency of the child. The Respondent travelled to India with the child in 2020. The child has remained in India since then, living with her paternal grandparents, while the Respondent returned to Canada.

The Applicants amended their application to indicate the child was living with the paternal grandparents and to seek the return of the child to Canada. This was never served on the paternal grandparents.

The Respondent and the Applicants attended a case conference in 2023 which produced a final order stating that the Respondent attorned to the jurisdiction of Ontario, required the return of the child to Ontario, and gave the Applicants parenting time. The Applicants brought a motion to enforce the final order which remained outstanding before the Ontario Superior Court of Justice (“the Court”).

After learning of the final order, the paternal grandmother commenced proceedings in India to restrain the Respondent from removing the child and to obtain an order for guardianship over the child. She then brought a motion before the Court to set aside the final order and sought a declaration that Ontario does not have jurisdiction over the issue. The paternal grandparents oppose this motion.

ISSUES

1. Should the final order be set aside because the paternal grandmother was not put on notice?
2. Does Ontario have jurisdiction over parenting of the child?

ANALYSIS

1. Should the final order be set aside because the paternal grandmother was not put on notice?

The paternal grandmother had “care and control” of the child, had information relevant to the best interests of the child, and was thereby affected by this case. It was thus determined that the paternal grandmother had standing to bring this motion.

Nevertheless, the paternal grandmother was not a party as neither the Respondent nor the Applicants added her as a party to their original motion. The Court identified the central question being whether the paternal grandmother ought to have been named as a party such that she was entitled to notice about parenting claims.

The Court determined that the paternal grandmother’s interest in the case crystallized when she had exclusive day to day care of the child, and from that point on, was entitled to be notified about the Ontario proceedings.

In applying factors laid out in Mountain view Farm Ltd. V. McQueen 2024 ONCA to determine whether to set aside a default judgement, the Court found that the paternal grandmother was never served. Since she never received notice about pre-final order litigation, she was not able to file an answer or bring a summary judgement motion.

Thus, the Court was prepared to set aside paragraphs 1 through 15 of the final order which related to jurisdiction, decision-making responsibility, contact and travel, while leaving the terms relating to property as an uncontested matter. Though this would prejudice the Applicants, ensuring the parenting issues would be decided on their merits with full participation by everyone with relevant information was deemed more important.

2. Does Ontario have jurisdiction over parenting of the child?

Per Section 22 of the Children’s Law Reform Act, jurisdiction is determined based on the child’s “habitual residence”. The Court of Appeal in Los v. Ross 2024 ONCA specified that this refers to the child’s habitual residence “at the commencement of the application for the order”. Furthermore, the decision in Office of the Children’s Lawyer v. Baley, 2018 SCC emphasized that habitual residence should be determined on the facts and circumstances of each case.

As the child was living in Ontario with the Respondent at the time the application was commenced, the Court found that Ontario has jurisdiction over the matter. The Respondent had never intended for the child to live permanently in India and testified he planned to return with her to Canada. Additionally, the Respondent’s agreement to attorn to the jurisdiction of Ontario was given heavy weight as the Court deemed he would likely be in the child’s life longer than either of her grandparents. The combination of these factors led to the Court to determine that the child is a habitual residence of Ontario.

The Court further commented that it was more appropriate for jurisdiction to be exercised inside Ontario as the Indian proceedings are at a preliminary stage. Furthermore, the Court did not know whether an Indian court would consider the child’s preferences, nor whether they would be capable ensuring that parties located in Canada could effectively participate in proceedings.

CONCLUSION

Paragraphs 1 through 15 relating to jurisdiction, decision-making responsibility, contact and travel, of the final order previously granted to the Applicants is overturned. The Court further rules that there be no costs orders as success was equally divided between the parties.