Kalra v. Bhatia, 2024 Ontario Superior Court of Justice: Child Custody Battle

Canada’s reputation as a land of opportunity is attracting people from around the world. This influx of newcomers, while enriching the nation, is causing growing pains within the family law system. 

One key challenge is child custody disputes involving families with ties to multiple countries. A recent case, Kalra v. Bhatia (2024 ONSC 1443), exemplifies this. Here, a mother took their child to India without the father’s consent. The father, now in Canada, is left seeking the child’s return through the Ontario courts. 

Canada’s growing diversity is a double-edged sword for family courts. While it represents the richness of the country’s multicultural fabric, it also brings complex international custody battles. These cases are difficult because they involve courts in different countries and complex legal systems that may have different laws and procedures regarding child custody.

The Kalra v. Bhatia Case

In the case of Kalra v. Bhatia, the Ontario Superior Court of Justice grappled with jurisdictional complexities in a child custody dispute. Ishan Kalra sought to have his daughter, SK, returned to Canada after his estranged wife, Shruti Bhatia, took her to India following their marital breakdown. As the judge noted, “when a parent leaves Canada for a non-Hague Convention country with a child, our laws don’t provide a framework for how Ontario courts can enforce its jurisdiction over that child.”

The key issue? Canada and India don’t have the same legal tools to deal with such cases. Canada is part of an international agreement named Hague Convention, that simplifies child abduction cases, but India isn’t. This lack of agreement made it hard for the Canadian court to enforce its decision in India.

What is a Hague Convention?

The Hague Convention, established in 1961, streamlines the process of authenticating public documents such as birth certificates and marriage licenses by providing a standardized certificate format that is recognized and accepted among its member countries. In contrast, non-member countries require a more complicated authentication process that involves multiple certifications from various government bodies and embassy legalization.

The Case Cont…
The court’s priority was the child’s well-being. They considered the child’s emotional needs and need for a stable life. Ultimately, the court determined that the child was a “habitual resident” of Ontario, a key factor in establishing jurisdiction under the Ontario’s Children’s Law Reform Act. This finding allowed the court to retain jurisdiction over the case. The court also viewed the mother’s actions as “wrongful removal” of the child from Canada, violating the same law.

This decision was influenced by the fact that India, the country where the child was taken has been a Hague member since 2005 but is not a party to the ‘1980 Hague Convention on the Civil Aspects of International Child Abduction’. This treaty establishes procedures to promptly return children to their country of habitual residence if they have been wrongfully retained or removed. India’s non-participation in this treaty is because Parental child abduction is not a criminal offence in India. Under Indian law, parents are regarded as the natural guardians of their children, which means they are not seen as “abductors” and are not subject to criminal prosecution. Plus, there is no established international agreement to facilitate the return of children taken from Canada to India, or vice versa.

The Need for International Cooperation

The Kalra v. Bhatia case highlights the need for international cooperation in resolving international child custody disputes. The lack of a standardized system for returning children abducted from Canada to India or vice versa underscores the complexity of these cases. For this case, the court ultimately ordered the return of the child to Canada, citing that Shruti Bhatia denied SK of her legal child right of ‘Parenting time’ with Ishan, which can be the cause of potential harm caused to the child. Further, it was also stated that if Shruti thinks that SK’s best interest lies in relocating to India, then she must make that claim Ontario Superior court of Justice.

A Stark Reminder!
The Kalra v. Bhatia case illustrates the complexities involved in determining jurisdiction when children have connections to multiple places due to their parents’ migration.

So, what’s the solution? Increased cooperation between nations, new legal frameworks, and potentially even specialized courts to tackle these international custody battles. 

But for families facing this right now, the need for strong legal representation is immediate. At Nanda and Associate Lawyers, our award-winning Family Law team possesses the experience to guide you through the intricacies of international family law. We understand the emotional toll and complexities involved. For eight years running, we’ve been honored with the Top Choice Award in Family Law in Brampton, a testament to our commitment to providing exceptional legal services. 

Don’t navigate this alone. Contact Nanda and Associate Lawyers today for a consultation. 

Read : Legal Disclaimer