Determining the Jurisdiction for Custody and Access: Dhillon v. Benipal

Child custody and access is premised on the fundamental notion of what is in the best interest of the child. However, the determination of the appropriate jurisdiction to hear a custody/access dispute is not a determination of the best interests of the child but rather a determination of the habitual residence of the child. This case deals with jurisdictional issues. The father and late mother are originally from India, but immigrated to Canada in 2004. The child was born in Canada in 2007, and lived his first 10 months of his life in Ontario. The parents decided to send their child to India in 2008 as they were struggling financially. Initially it was agreed that the child would live in India with his paternal grandmother. However, the paternal grandmother decided she was incapable of caring for the child. Thus, the child was put in the care of the maternal grandparents in India, and remained there for over a year.

During the litigation, the father was arguing that the child’s habitual residence is in Ontario. If the Ontario Superior Court of Justice did determine that the child’s habitual residence was in Ontario, then the said Court would have to determine whether the father or maternal grandparents should get custody of the child. The father also testified that he had a continuous relationship with his child. The Court found this to be untrue and the father’s testimony was filled with inconsistencies. The Court expressed that they preferred the evidence of the maternal grandparents that showed they were taking care of the child in India.

The major legal issue the Court was faced with is whether the Ontario Superior Court of Justice has jurisdiction to make an order regarding custody and access. In order to determine this, the Court had to define where the child’s habitual residence lies. Pursuant to the Children’s Law Reform Act, section 22(2)(c) defines habitual residence when dealing with a person other than a parent. In this case, the care and de facto custody of the child was with the maternal grandparents. This section of the Act determines habitual residence by (1) where the child lived on a permanent basis, and (2) whether it was for a significant period of time. The significant period of time is also relative to the child’s age. The Court mentioned that intention is only one factor in determining permanency and the existence of a foreign court order is another factor to consider. In this case, the Court found that the child was permanently living with the maternal grandparents and the child had formed close relations with relatives he was surrounded by. The Court recognized that given the child is in his infancy, the child did live with the maternal grandparents for a significant period of time.

The Court under section 25 of the Act are afforded the statutory power to refuse exercising their jurisdiction where they feel it is more appropriate for another jurisdiction to handle the custody and access matter. The Court made it clear that the public policy reason for determining the habitual residence of the child is to allow the “home” jurisdiction to deal with the custody arrangements of the child. The Court came to the conclusion that the child’s habitual residence was in India and it became the Indian Court’s jurisdiction to decide the custody and access of the child.

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.

This Post Has One Comment
  1. Occasionally, parents in Canada of a young child, send their child to live with relatives in another country while the parents of the child remain in Canada. This may be done because the parents in Canada do not have their financial and career situation stabilized yet in Canada. The parents’ intention may be to have the child be returned once they have their finances and careers sorted. Often, the parents also are hopeful that the relatives taking care of the child will be able to later immigrate to Canada.

    This case should serve as a warning to parties who find themselves in such a situation. Notwithstanding that every case is fact specific, parents are taking the risk that the Ontario Courts may not take jurisdiction over their case. It is not a question of who are the child’s parents. For the court to take jurisdiction, what matters is where the child is habitually resident.

    After the decision is made to have the child live in another country, parties should be aware that, for any number of reasons, circumstances may change and a dispute may arise regarding the child. As per Dhillon v. Benipal, the parties may find themselves at the mercy of the courts in the foreign jurisdiction.

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