Ontario court rejects mother's proposal to be bound by treaty if child not returned to Canada

The Ontario Superior Court has denied the request of a mother to be bound by the Hague Convention if she failed to return her child from a temporary trip to India, ruling that litigants cannot simply impose the convention on a country that is not a party to the treaty.

In Waraich v. Waraich, 2022 ONSC 3599, the mother brought a motion for leave to obtain a Canadian passport for her child, Gurleen Waraich, and leave to travel with the child to India for approximately six to eight weeks. The parties were married in 2016 and separated in 2020. The mother had a grade 12 education from India, was never employed in Canada, and she came to Canada under sponsorship by the father. Gurleen was born in Canada shortly before the parties’ separation. The mother and Gurleen ended up moving to a shelter after the parties separated, but the father paid child support under a temporary order of the court.

The father opposed the mother’s attempts to obtain a Canadian passport for Gurleen and to travel with her, arguing that the mother wished to remove the child from Canada and not return. He further expressed concern about the risk that Gurleen may contract COVID-19 given that she was very young and unvaccinated. He had also been exercising parenting time three hours each week and he intended to increase his parenting time.

The court emphasized that the best interests of the child was the primary consideration in deciding whether to grant the mother’s requests. The mother offered several indicia of her good-faith intentions and plan to return to Canada with the child if she was allowed to travel with her. The evidence of her intention to return included her application for Canadian citizenship. She also proposed that although India is not a signatory to the Hague Convention, she would agree that the treaty is applicable if the child was not returned so that the father could proceed with a Hague Convention proceeding to seek the return of the child to Canada.

However, the court found that the mother’s connection with Canada was “tenuous” because she was unemployed in Canada and she had no assets or community of family within Canada. Consequently, her motion was dismissed. 

The court further said that India is not a signatory to the Hague Convention and the mother’s proposal to be bound by the terms of the convention was of absolutely no value to the court.

“Parties cannot simply by an agreement impose the Hague Convention on an Indian court or government authorities. Such an agreement would be completely unenforceable,” the court said.

The court also considered the young age of the child, which militated against granting the mother’s motion.

“Were the child somewhat older and able to enjoy and remember a trip such as the type proposed, where she would interact with her distant family, the applicant’s request would be far more in the interest of the child than is present at this time,” said the court.

In addition, the court found that the mother had not put forward any plan for the proposed trip to India. There was no evidence as to the exact time frame over which the trip would take place, where she would be residing with the child, and with what family members, if any, would be residing with her and the child. As a result, there was nothing before the court upon which the safety and welfare of the child can be assessed.