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.

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