



COURT OF APPEAL FOR
    ONTARIO

CITATION:
Kunuthur v.
    Govindareddigari, 2018 ONCA 730

DATE: 20180910

DOCKET: C65192

Sharpe, Juriansz and Roberts
    JJ.A.

BETWEEN

Srichand
    Reddy Kunuthur

Applicant (Respondent)

and

Deepti Govindareddigari

Respondent (Appellant)

Harminder Dhillon and Sukhman
    Grewal, for the appellant

Manjeet Kaur and Kavita
    Ramnanan, for the respondent

Heard: August 16, 2018

On appeal from the order of Justice Jamie K. Trimble of the
    Superior Court of Justice, dated March 1, 2018.

REASONS FOR DECISION

[1]

This is a custody dispute concerning
    the parties son who is 13 years old. He is currently living in India where he
    has been for the past five years.

[2]

The mother and father married in 2004. Shortly
    thereafter, they relocated to the U.S. where the father had a job. The son was
    born while they were there and is an American citizen.

[3]

The family moved to Brampton in 2011
    and became permanent residents. In April 2013, while the father was away for
    business, the mother took the son to India, she said to visit her ill mother. When
    the father returned from the business trip, all of the sons personal
    belongings had been removed.

[4]

In June and July 2013, the mother
    brought petitions for divorce and custody in India.

[5]

On October 9, 2014, on the fathers
ex parte
motion,
    Sproat J. granted an order that the mother return the child to Ontario and that
    the father be granted temporary custody. The mother did not appeal or move to
    set aside the order, and did not return the child to Ontario.

[6]

The father brought a motion to have the
    mother found in contempt of Sproat J.s order, which came on before the motion
    judge on March 1, 2018. The mother appeared before the motion judge, admitted
    she took the child, having advised the father while on the airplane that they
    were leaving to visit her ill mother, and stated she wanted to return to
    Ontario and address custody and access here. She explained that she had been
    unable to return the son to Ontario because his U.S. passport had expired.

[7]

The motion judge found that the childs
    habitual residence was Ontario and so proceeded on the basis that the Ontario
    courts had jurisdiction. However, in light of the mothers submissions, he did
    not find her in contempt but ordered she surrender any passports she held until
    she returned the child to Ontario. He also made a final order granting the
    father sole custody.

[8]

The mother appeals from the motion
    judges order, submitting that he erred by finding that Ontario has
    jurisdiction and by making a final order granting sole custody to the father.

[9]

Both parties tender fresh evidence. The
    fresh evidence establishes that the child has developed strong links to India.
    He is well settled in school and, it seems, does not wish to return to Canada. The
    fresh evidence also provides information about the proceedings in India.

A.

Jurisdiction

[10]

The motion judge did not discuss the
    basis of the courts jurisdiction in any detail, no doubt as the mother said
    before him that she wanted to return to Ontario to address custody and access
    to the child. The transcript of the hearing shows she said so repeatedly.
    However, given that she was facing contempt unrepresented, her counsel has persuaded
    us that what she said should be understood as indicating an intention to return
    to Ontario to oppose the fathers Ontario application by contesting Ontarios
    jurisdiction, as stated in her Answer to the fathers application.
    Consequently, and in light of the abundant fresh evidence filed, we consider
    the issue of jurisdiction more fulsomely.

[11]

The jurisdiction of the Ontario courts
    to determine the custody of the son is governed by s. 22 of the
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12. The section provides:

22 (1) A court shall only exercise
    its jurisdiction to make an order for custody of or access to a child where,

(a) the child is habitually
    resident in Ontario at the commencement of the application for the order;

(b) [not relevant]

(2) A child is habitually resident in
    the place where he or she resided,

(a) with both parents;

(b) where 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;
    or

(c) with a person other than a
    parent on a permanent basis for a significant period of time,

whichever last occurred.

(3) 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.

[12]

Relying on s. 22(3), the mother argues
    the father has acquiesced in a change to the childs habitual residence by unduly
    delaying the proceedings. The mother submits that applying the hybrid
    approach to habitual residence adopted by the Supreme Court in
Office of the Childrens
    Lawyer v. Balev
, 2018 SCC 16, 5 R.F.L. (8th) 1, the child had developed
    more extensive and deeper links connecting him to India than Canada by the time
    of the fathers Ontario application.

[13]

The mother also contends that the
    Ontario court should decline jurisdiction because the father has attorned to
    the courts in India.

(i)

Delay

[14]

The mother removed the child to India
    in April 2013. The father received the mothers notice requesting his consent
    to a mutual divorce and asked for two months to respond. When the mother
    started proceedings for custody in India in July 2013, the father responded by
    seeking the dismissal of the mothers custody petition on the grounds that the
    Indian court did not have jurisdiction.

[15]

Although we accept the fathers
    explanation that the almost three-and-a-half-year delay in enforcing the order
    of Sproat J. is due to the fact that he was not aware of when the mother may
    have been present in Canada, we question whether the fathers initial delay in
    commencing an Ontario proceeding was undue.

[16]

The child was taken to India in April
    2013, but the father did not commence a custody application in Ontario until
    more than a year later at the end of June 2014. The father says he received
    confusing and incorrect advice from the police, duty counsel and a lawyer.
    While the father says he approached a lawyer, he filed no evidence and does
    not claim that he actually retained a lawyer to obtain proper advice. In the
    time that elapsed, it seems to us he had ample opportunity to do so.

[17]

However, it is not necessary to decide
    the issue of delay as we are satisfied the father has attorned to the courts in
    India and the Ontario courts should decline exercising jurisdiction.

(ii)

Attornment

[18]

A party attorns to a courts
    jurisdiction when it goes beyond simply challenging the jurisdiction of that
    court and, instead, litigates a claim on the merits: see
Van Damme v. Gelber
,
    2013 ONCA 388, 115 O.R. (3d) 470, at paras. 3, 24, leave to appeal refused,
    [2013] S.C.C.A. No. 342; and
Wolfe v. Wyeth
, 2011 ONCA 347, 282 O.A.C. 64,
    at para. 44.

[19]

After the mother commenced her custody
    petition in the Family Court in India, the father also filed a petition in the
    Family Court in India in October 2013 disputing its jurisdiction. He also
    brought a Civil Revision Petition before the High Court for a stay of the Family
    Court proceeding relating to custody. On April 17, 2015, the High Court made an
    interim order refusing to stay the Family Court custody proceedings, stating
    the Family Court could deal with the issue of jurisdiction if raised by the
    father.

[20]

The parties provided limited assistance
    in understanding what has happened since then. As of June 14, 2018, it seems
    the father has not obtained a final ruling on his Civil Revision Petition to
    the High Court. The custody petition has been proceeding in the Family Court. No
    ruling of the Family Court relating to jurisdiction has been placed before us.
    The mother submits the father has failed to take any steps to obtain any ruling
    the Family Court does not have jurisdiction. In the Family Court the father has
    made interlocutory applications for interim custody of his son while the father
    was in India, however, there is nothing to show he has abandoned his position regarding
    jurisdiction of the Family Court over the mothers custody petition.

[21]

That said, the father has filed a
    counter petition in India to the mothers petition for divorce. In that counter
    petition, he has invoked s. 6 of the
Hindu Minority and Guardianship Act, 1956
(which he claims clearly lays down that the guardian of [the] Hindu minor in
    respect of the minors person  is the father). The final relief he seeks in
    his counter petition is dismissal of the mothers petition for divorce and that
    custody of the minor boy may be ordered to be given to the respondent with
    immediate effect.

[22]

Even though the fathers present
    position in the custody proceedings in India is unclear, it appears to us that,
    by seeking a final order of custody on the basis of Indian law in the divorce
    proceeding in India, the father has attorned to the courts in India. The
    proceedings in India are well underway. On that basis, we conclude the Ontario
    court should have declined jurisdiction.

B.

Custody

[23]

In any event, the motion judge erred by
    making a final custody order in the fathers favour in a summary manner. Subsection
    24(1) of the
Childrens
    Law Reform Act
states that the merits of a custody application
    shall be determined on the basis of the best interests of the child, in
    accordance with subsections (2), (3) and (4). Subsection 24(2) reads as
    follows:

Best interests of child

(2) The court shall consider all
    the childs needs and circumstances, including,

(a) the love, affection and
    emotional ties between the child and,

(i) each
    person, including a parent or grandparent, entitled to or claiming custody of
    or access to the child,

(ii)
    other members of the childs family who reside with the child, and

(iii)
    persons involved in the childs care and upbringing;

(b) the childs views and
    preferences, if they can reasonably be ascertained;

(c) the length of time the child
    has lived in a stable home environment;

(d) the ability and willingness of
    each person applying for custody of the child to provide the child with
    guidance and education, the necessaries of life and any special needs of the
    child;

(e) the plan proposed by each
    person applying for custody of or access to the child for the childs care and
    upbringing;

(f) the permanence and stability
    of the family unit with which it is proposed that the child will live;

(g) the ability of each person
    applying for custody of or access to the child to act as a parent; and

(h) any familial relationship
    between the child and each person who is a party to the application.

[24]

The motion judge was required to
    consider the factors set out in s. 24(2), in particular, the overarching factor
    of the best interests of the child. There is nothing in the record before us to
    indicate that he did so.

C.

Conclusion

[25]

The appeal is allowed. The order of the
    motion judge is set aside and the fathers motion for custody is stayed. Costs of
    the appeal and the motion to stay are fixed in the mothers favour in the
    amount of $20,000, all inclusive.

Robert J. Sharpe J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.


