Recent case: Habitual residence, jurisdiction and custody

Recent case: Habitual residence, jurisdiction and custody

Kunuthur v. Govindareddigari, 2018 ONCA 730: The parents married in 2004 and lived in the United States where their son was born as an American citizen. The family moved to Brampton in 2011, when their son was 6 years old, and became permanent residents. In April 2013, the mother took the son to India while the father was away on business. She claimed the purpose of the trip was to visit her ill mother, but all of the son’s personal belongings were removed and, in June and July, the mother brought petitions for divorce and custody in India. In October 2014, on the father’s ex parte motion, an Ontario judge ordered the mother to return the child and the father to be granted temporary custody. The mother ignored the order.

The father brought a motion that was heard nearly four years later, in March 2018, to have the mother found in contempt. The mother appeared before the motions judge and stated she was unable to return the son to Ontario because his U.S. passport had expired. The motions judge found that the child’s habitual residence was Ontario and made a final order granting the father sole custody. The mother appealed this order to the Ontario Court of Appeal. Fresh evidence suggested that the child had developed strong links to India, that he was well settled in school and seemingly did not wish to return to Canada.

The Court of Appeal had to address the issue of whether the motions judge had been correct to award a final custody order in favour of the father.

Section 22(3) of the Children’s Law Reform Act (CLRA)states: “The removal or withholding of a child without the consent of the person having custody of 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.”

The mother argued that the father acquiesced by unduly delaying the proceedings and that the “hybrid approach” adopted by the Supreme Court in Office of the Children’s Lawyer v. Balev reasserted the importance of the deeper links the child had developed in India.

Perhaps most importantly to the case, the fresh evidence showed that the father had “attorned” to the courts in India by filing a counter-claim; that is, by responding in the jurisdiction where the mother had commenced an action, he had consented (intentionally or otherwise) to India’s jurisdiction over the matter. After the mother’s petitions for divorce and custody in India in 2013, the father filed a petition in the Family Court of India later that year.

The Court of Appeal concluded that the Ontario court should have declined jurisdiction. As a result, the court found it unnecessary to decide the issue of delay. The court also did not comment on the matter of habitual residence other than restating the mother’s position of applying the hybrid approach.

The Court of Appeal also found that the motions judge erred by making a final custody order in the father’s favour in a summary manner. The court found that the judge had not considered the factors set out in subsection 24(2) of the CLRA regarding the best interests of the child. The appeal was allowed, the order of the motion judge was set aside, and the father’s motion for sole custody was stayed with costs awarded to the mother.

This case summary was prepared by Kevin Chao, when he was an articling student with Luke’s Place in 2019.

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