Custody Self-Help: When a “Vacation” Turns Into a Permanent Move

If you are a separated or divorced parent the summer vacation period – which frequently involves travel plans – can be fraught with concerns over the other parent adhering to established custody and access schedules.  This fear is heightened in situations where there is concern that the other parent will not return the child from vacation abroad, thereby flouting the law and taking the question of child custody into their own hands.

This was precisely the concern raised by the father in a case called Purushothaman v. Radhakrishnan, 2014 ONCJ 300 (CanLII).   The mother had applied to the Ontario court for permission to take their 7-year-old child to India in August for a 3-week vacation to visit her family, almost all of whom lived there.   The father objected, claiming that she was likely to remain there permanently.  She had no other family in Canada, he said, and during a prior visit to see them in 2010, she had overstayed the agreed visit time. He also pointed out that despite having lived in Canada for 8 years, she had never applied for Canadian citizenship.

In her defence, the mother pointed to the fact that she has had the same full-time job for 5 years, owned a condominium in Canada, and recently bought a car.  The child, having been born in Canada, was a Canadian citizen and she had applied for citizenship herself.

The court examined the facts:  Contrary to the father’s claim that the child was too young to benefit from the trip, this was a real opportunity for the child to spend time with the mother’s extended family in India, and to become exposed to the culture in a meaningful way.  It was therefore in the child’s best interests to allow the trip.

More to the point, there was no realistic basis for the father’s conclusion that the mother was likely to engage in self-help remedies and permanently move the child out of Canada.  She had never done so before, even in the context of trying (successfully) to obtain sole custody of the girl in an atmosphere of great acrimony with the father.  Instead, she had remained in Canada, had placed her faith in the Canadian court system, and had continued to try to work through the issues with the father in a law-abiding way.

In short, and though the father had raised some valid concerns, the court found that the mother’s overall behaviour so far did not suggest that she would suddenly, and for no apparent reason, resort to abducting the child.  The benefit of the proposed vacation far outweighed the potential risks.

The court granted the mother permission to make the 3-week trip to India.

Are you separated or divorce and need advice on travelling with your child?  Contact us for a free consultation.

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