Court Cases & Orders Parenting Time & Decision Making

Despite Canadian Order, Court in India Refuses to Allow Child’s Return

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Written by Russell Alexander / (905) 655-6335

Despite Canadian Order, Court in India Refuses to Allow Child’s Return

Given the impressive multiculturalism of modern-day Canada, it is not uncommon for parents to have originated from different nations before settling down to raise their children here.  But when those same parents later find themselves on the brink of separation or divorce, they may choose to return to their country-of-origin (often to rejoin extended family), and ideally take their children with them.

This can give rise to disputes involving numerous international law issues, including: whether a parent actually has the legal right to do so; which country’s laws and judicial system should govern the matter; where a trial or hearing should be held; and how or whether Family Law orders validly issued in one country can be enforced in a different one.

This last issue was the illuminated in a recent ruling from a court in India.  The decision shows that – as with the courts of all countries — the judgments of Canadian courts are not always respected and enforced, especially when they happen to relate to children.

The ruling emanated from the northern Indian state of Rajasthan, which borders on Pakistan.  Despite the existence of an order by a Canadian court requiring a 10-year-old boy to be returned from there to rejoin his father in Canada, the presiding Indian court concluded that the boy should not be allowed to go.

The boy’s parents, who had lived together in Ontario while married, were now embroiled in a custody dispute over him, post-separation.  The mother took matters into her own hands and unilaterally decided to move the boy back to India with her, against the father’s wishes. This prompted the father to successfully obtain an order from Family Court judge in Hamilton, Ontario, granting him sole custody of his son, and directing his return.  That order also directed all law enforcement agencies – including INTERPOL – to take enforcement steps as necessary.

The matter then came before the court in India, where the father merely sought to have the pre-existing Ontario court order enforced.

However, the Indian court refused to do so, stating:

“If now he is forced to go back to Canada in the sole care of his father, is likely to psychologically disturb him, particularly when he will be required to now adapt to an education system of that country. This would adversely affect his overall growth and grooming as in the absence of his mother, his father being a busy professional, he is not likely to remain under the care of a Nanny.”

The Indian court was untroubled by the existence of the prior Canadian order stating otherwise; it concluded that it still had the authority to decline the boy’s return in light of what it adjudged to be his best interests.  That remained the prevailing and paramount consideration.

Indeed, the Indian court observed that the existence of the Canadian court order was “only one of the factors” and that it should not get “fixated” with it.   Rather, in these kinds of cases the India court had other factors to consider, too: – such as how settled the child had become in the new country, whether he or she would be exposed to physical or psychological harm, and whether the child’s own views could be ascertained in light of his or her age and maturity.

Applying those tests, the Indian court was satisfied that the child’s removal back to Canada to rejoin his father was not in his best interests in this case, since he had already been living in India for several years, and suffered from some health concerns.  (Still, the court did acknowledge the father’s access rights, by issuing directions specifically mandating that he still be allowed to maintain contact with his son.)

The court added that the boy should be allowed to stay in India until he reached the age of majority, at which time he would be entitled to choose between pursuing citizenship from that country, or else obtain citizenship rights in North America.

See the full text of the Indian court’s judgment, here.

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.