By fleeing to India, the mother has 'unlawfully abducted' the child: court
A recent Ontario Superior Court of Justice ruling has shed light on jurisdictional complexities in child custody disputes involving international elements, especially when non-Hague Convention countries are involved.
In Kalra v. Bhatia, 2024 ONSC 1443, the court dealt with the issue of jurisdiction in the case of a child, SK, who was taken to India by her mother following a marital breakdown with the father. The court has established that Ontario retains jurisdiction to make a parenting order since SK was habitually resident in Ontario at the application's commencement.
“This case raises a special and, in my view, increasing challenge for our family court system,” the court wrote. “As Canada welcomes new immigrants and their families to study, live, and work here, our courts face the unique problem of children who live in and have connections to more than one place.”
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The court noted that the mobility of immigrant families, often influenced by economic opportunities, family ties, and changes in government policies, presents unique jurisdictional issues, especially when a parent absconds with a child to a non-Hague Convention country, such as India, in this instance.
The court found that the couple and SK initially moved to Canada from India with hopes for a new beginning. However, marital discord led to separation shortly after the father’s arrival. Subsequently, the mother misled the father into believing that legal actions would be taken against him if he attempted to contact his daughter, and she then moved SK back to India.
During the proceedings, the court declined to issue an interim parenting order due to insufficient evidence about what would serve SK's best interests. Furthermore, it did not grant the "chasing order” the father sought, which would compel the mother to return SK to Canada. Instead, the court mandated that the mother respond formally to the legal actions within a prescribed period.
The court said that the legal considerations in the case hinged on the child’s "habitual residence," a key factor in jurisdictional determinations under Ontario’s Children’s Law Reform Act. The court found that the mother's deceptive actions, intended to disrupt the father’s relationship with the child, did not change SK’s habitual residence from Ontario. The father had not consented to SK living in India nor acquiesced to the relocation, as the mother claimed.
Additionally, the court found the father’s testimony credible and reliable. In contrast, it questioned the honesty of Shruti's accounts and her motivations for temporarily returning to Canada after taking SK to India.
Ultimately, the court concluded that the parties intended to live with the child in Canada. However, by fleeing to India, the mother has “unlawfully abducted SK, in violation of our country’s laws.”
