Permission To Travel To Non-Hague Convention Signatory Country

Purushothaman v. Radhakrishnan, 2014 ONCJ 300

In this case, the Court deals with a judge’s discretion to permit or deny a parent to travel with their child to a non-Hague Convention signatory country where the other parent suspects an intent to escape Ontario’s jurisdiction over the child.

Background

The mother wanted to travel to India for a three-week vacation with the parties’ young son.  The father was concerned that, because India a signatory to the Hague Convention, he would have no recourse to have the child returned to Ontario if the mother decided to stay in India with him.  He believed this scenario to be likely given the mother’s previous overstay and delay in returning on her last trip with the child to India, the primary location of her family in India, and the fact she has not yet obtained Canadian citizenship.

The mother indicated she intended to return as demonstrated by the fact that she has lived in Canada for eight years, has had the same full time job for the past five years, owns a condominium, purchased a car, and has submitted an application for Canadian Citizenship.  Furthermore, the child was born in Canada, is a Canadian citizen, and has lived in his entire life in Canada.

The father argues that, given the boy’s age of seven years, he is too young to benefit in any meaningful way from such a trip.

Analysis

To support his argument, the father relied on Mahadevan v Shankar where the court denied similar request.  The determination of whether or not to deny travel in such circumstances turns on a fact specific weighing of the benefits of traveling against the “plausible risks” based on the following factors:

  1. Benefits of traveling to the child;
  2. Existence of threats by the parent to remove the child permanently from Canada;
  3. Existing custody arrangements;
  4. Employment of the parent seeking travel;
  5. Whether the intended destination is a Convention signatory; and
  6. Whether there are plausible motives for the parent to remove the child from Canada

Here, the Court distinguished from Mahadevan based on the facts.  In Mahadevan, the father seeking travel in had an interim custody arrangement, arranged for a sabbatical from his job, had serious motives to abscond with the child and made threats to do so.  In this matter, the mother already had custody, was in ongoing employment with good standing, and had not made any such threats.

While the fact that India was not a signatory of the Convention was an important factor in the Mahadevan decision, the Court in this case gave it less weight.  The mother’s behavior here was remarkably different from the father in Mahadevan.

Furthermore, where the child in Mahadevan was merely four years old, the child here was seven and thus old enough to be meaningfully exposed to Indian culture through his extended family in India.

The Court weighed the above and declared the following:

  • Young children are capable of absorbing new experiences and new ideas;
  • There is no evidence the mother overstayed the first trip with the child to India and it is undisputed that she with him to Canada;
  • There was persuasive evidence a physically and emotional abusive relationship where the father was attempting to exert control over the mother’s life and behavior;
  • While there is evidence that the mother may have strong motivation to flee early on in the proceeding, she chose instead to remain resident in Canada and cooperate with Canadian legal system to work out issues with the father; and
  • If the mother intended to abscond with the child, she would have done so years ago prior to being granted sole custody in 2012.

The Court concluded that there was no evidence of any motive for the mother to remove the child permanently from Canada.  As such, it would be beneficial to allow the child on the trip as it was in his best interests.  The mother was free to travel to India with the child for a set period of time.  The Court further cautioned the father from making future objections against travel on similar grounds.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.