An Ontario resident living in Kitchener petitioned the Ontario Superior Court to compel his estranged wife living in India to bring their 2-year-old son back to Canada. However, last month, the court denied his request for custody.
The boy’s father, 31, married the child’s mother, 27, in India in 2012. They emigrated to Canada and had a baby boy in April of 2014.
Last February, the man’s wife took their son to India to meet family members. Her husband joined them two months later. All three were planning to come back to Kitchener last April, but only the husband returned. His wife and child remained in India.
In November, the father filed for custody of his son, asking that his wife be ordered to return him to the jurisdiction of the Ontario courts. Simultaneously, the boy’s mother pursued a sole custody order in India.
She claims to have told her estranged husband numerous times that she planned to remain in India, but her husband denies this.
The Ontario Justice maintained that he should have seen that his wife had no intention of coming back, stating in his denial, “[he] either had unrealistic expectations of reconciliation or was willfully blind to what was occurring.”
The judge found that the man never attempted to change her mind until late last year and that “there was either consent, implied consent or acquiescence” for them to continue living in India.
The judge found the the Indian court had the sole jurisdiction regarding the determination of parenting issues.
Whenever there is the potential for one parent to take a child out of the country where the other parent lives, it is wise to get a custody agreement in place dictating that the child must return by a stated date or risk the parent with the child to face legal repercussions.
Source: Waterloo Region Record, “Judge rejects Kitchener man’s request to force estranged wife in India to return their son,” Gordon Paul, April 27, 2016