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The Superior Court in Ontario, Canada relied in
substantial part on the expert evidence of Jeremy D. Morley as to family law in
India in ruling that the father of a four-year-old child living in Ontario
should not be permitted to take the child on a family visit to India. Mahadevan
v. Shankar, issued October 12, 2010. The child’s mother, who has custody of the
child, opposed the trip because of her concerns that the child would never
return.
The Court extensively referenced Mr. Morley’s opinion
on the matter in its written opinion which dismissed the father’s motion to
allow this travel. The relevant portion of the Court’s findings in
relation to Mr. Morley’s expertise is as follows:
“Ms. Junger filed a detailed and helpful affidavit of
Jeremy D. Morley, a New York State lawyer specializing in international family
law. Mr. Sherman did not challenge Mr. Morley’s expertise. That
affidavit unequivocally outlined the many challenges, frustrations-and indeed
roadblocks-which the Applicant would face in attempting to secure V’s return if
the Respondent elected not to return the child from India.
It was his ‘very firm opinion’ that notwithstanding
any order of a court in Ontario, if the father retained the child, ‘it would be
exceedingly difficult and perhaps impossible for the mother to secure V’s
return home from India.” Any court proceeding in India to secure the child’s
return would be exceedingly slow. Indian courts do not honor Canadian
custody orders. The mother would have to spend considerable money on
legal fees to try and secure the child’s return-or even have access to the child
in India. India does not comply with international norms concerning the
return of internationally abducted children ‘and it is a justifiably
well-recognized safe haven for international child abductors.’ India has
chosen not to accede to the Hague Convention. ‘India’s failure to sign
the treaty constitutes a strong signal that it does not consider the abduction
of children from other countries to be a serious matter.’ Indian courts
generally do not enforce foreign custody orders. The law in India is that
foreign custody orders are merely items to consider as part of an overall de
novo custody review. International child abduction is not a crime under
Indian law and no Indian legislation contains any helpful provisions to deter
international child abductions. There can be no extradition from India
for international child abductions. The court system in India is
extremely slow and inefficient. The delays are such that an abductor has
ample time to create ‘facts on the ground’ in terms of getting the child
sufficiently settled into life in India to justify an Indian court in
ultimately deeming that it is best to keep the child in India.
At paragraph 23 of his affidavit, Mr. Morley gives a
sobering warning:
‘As a consequence of India’s failure to promptly
return internationally abducted children, courts outside of India should be
extremely wary about allowing parents to take children for temporary visits to
India over the objections of other parents since there is a great likelihood
that parents who wrongfully retain children in India will get away with their
wrongful conduct scot-free in India.’
While the Respondent’s lawyer did not categorically
challenge Mr. Morley’s observations and warnings, Mr. Sherman suggested that
any concern could be addressed by the Respondent’s offer to sign a legal
document in Canada acknowledging that he would consent to the Indian court
sending V back to the mother in the event of a dispute. Given Mr.
Morley’s comments about the danger of Indian courts ignoring orders signed by
Canadian judges, it is unclear why Indian courts would be more likely to
respect a document signed by a parent.
And considering Mr. Morley’s warnings about India not
being a signatory to the Hague Convention - warnings borne out by the
cautionary tale in the Venkatesh case - there are overwhelming reasons to be
concerned that if the Respondent retained V in India, there is very little the
Applicant could do about it.
The Respondent’s motion is dismissed.”
The decision may be found at
http://www.canlii.org/en/on/onsc/doc/2010/2010onsc5608/2010onsc5608.html
