The appellant mother, HD, and the respondent father, DD, were married and have two young children together. During the marriage, the Children’s Aid Society (CAS) became involved because of concerns for the children’s mental and emotional wellbeing as a result of exposure to domestic violence. Following separation, there were several incidents following which DD pleaded guilty to criminal harassment HD. HD was later granted sole custody on a consent Order. CAS recommended against unsupervised access for the father, but DD refused to engage in supervised access. After receiving a positive and supportive response from CAS, HD moved with the children to Alberta. At this point, the father had not seen the children for nearly 6 months. DD brought a motion to vary the consent Order to gain custody of the children. An ex parte Order was made in Ontario ordering HD to return the children to DD’s temporary care while the motion to vary was adjourned. HD returned to Ontario for the hearing while the children remained in Alberta as per an arrangement with child welfare authorities.
In this case the parties were married in 1991 and separated in 2005. There were two children of the marriage aged 15 and 11 at the relevant time. In 2006, Ms. Venkatesh decided to move to India where she took up permanent residency.
In July of 2009 Justice Murray ordered that:
- the primary residency of the children would be in Ontario,
- the children be permitted to travel to India in the summer of 2009,
- the children be returned to Ontario either on or before September 6, 2009,
- the jurisdiction of all matters dealing with the children is Ontario, and
- failure to return to children to Ontario would constitute wrongful detention.
However, September 6th came and went and Ms. Venkatesh did not return the children to Ontario. As a result, Mr. Venkatesh brought a motion for an order requiring his former spouse to return the children back to him. Ms. Venkatesh alternatively sought an order from the court in Ontario on the issue of whether the original order, detailing the custody and access arrangements, should be varied to grant primary residency of the children to her.
It should be noted that India is not a signatory to the Hague Convention. Therefore, initiating proceedings in India could potentially be ineffective, lengthy and extremely costly.
Since Ms. Venkatesh was in violation of the original order of Justice Murray, Justice Gray took it upon himself to determine whether or not her request for a variation should even be heard. Relying on the case of Dickie v. Dickie he concluded that the court has the discretion to refuse to grant audience to an individual who is in contempt of an order. The court will not tolerate a litigant to abuse the court’s processes, or to impede the course of the administration of justice. Moreover, he noted that since this power is discretionary a court could, based on the circumstances of the case, still grant an audience to an individual despite his or her contempt if there was good reason to do so.
Secondly, a court could grant audience, despite contempt, if an argument was advanced and justified that return of the child would imperil his or her best interests by reason of health, or otherwise it was dangerous, impossible or even impracticable to bring the child within the jurisdiction (Hadkinson v. Hadkinson). Ms. Venkatesh claimed that she did have good reason since her children articulated that they wanted to reside with her in India and because return to Ontario would put their best interests at stake. However, this was dismissed by Justice Gray who stated that: “a mere allegation that the interests and welfare of children are at stake does not give licence to the Court to open its door any time such an allegation is made.”
Justice Gray therefore denied an audience to Ms. Venkatesh unless and until she returned the children to Ontario. Abuse of process was not, in this case, and generally will never be tolerated by the court. There was an agreement in place regarding which court would have jurisdiction to determine issues dealing with the children and she agreed to it. Justice Gray deferred to that agreement and in so doing did not “reward Ms. Venkatesh for her misconduct.”