“The parties each retained an expert to opine on the law and processes available in India and/or the UAE regarding the return of a child to her home country.
The applicant retained Jeremy Morley, an American law professor and international law practitioner, to provide an expert report concerning the international family law aspects of this case. Mr. Morley was asked to opine on the ability of the applicant to have the parties' daughter returned to Canada if the respondent took the child to India, the UAE, or another non-signatory to the Hague Convention, and ignored an order from the Ontario Superior Court requiring the child's return.
Mr. Morley's expert report was dated March 6, 2019 and constituted the bulk of his evidence-in-chief. His report was to be used for the trial that was to proceed in 2019 but was adjourned. At the trial before me in 2021, Mr. Morley confirmed that his opinion had not changed in the two years since he authored his report.
Mr. Morley concluded that:
- a) It would be exceedingly difficulty and mostly likely impossible for the applicant to secure the child's return home;
- b) Any court proceeding in India or Dubai seeking the child's return to Toronto would be exceedingly slow, unpredictable and difficult, and would likely require the repeated personal presence of the applicant over extended periods of time;
- c) The courts in India and the UAE will not normally honor or enforce Canadian child custody court orders;
- d) The courts in India and UAE do not issue mirror custody orders;
- e) India and the UAE are safe havens for international child abduction;
- f) In attempting to secure the return of the child to Canada or to secure access to the child in India or the UAE, the mother would need to spend very considerable sums on legal fees, travel costs and other expenses; and
Mr. Morley's ultimate conclusion in his expert report was that:
If the Father is able to remove the Child from Canada in defiance of Canadian court orders, there is an extremely significant risk that the Mother will be unable to secure the Child's return or even to obtain access to the Child. The facts with which I have been presented, if true, show that there is a significant risk that the Father will not comply with the terms of a Canadian court order. The likely destination countries are havens for international child abduction. The only way to effectively prevent the Father from taking the Child overseas is to require that the Father's access to the Child be strictly supervised.
The respondent did not contest Mr. Morley's qualifications, experience or expertise to provide expert opinion evidence in the area that he was proffered.
I accepted Mr. Morley as an expert qualified to provide expert opinion evidence before the Ontario Superior Court of Justice. Among Mr. Morley's qualifications and experience relevant to this case are that he is:
- An American attorney admitted to the New York Bar in 1975 who has practiced law consistently thereafter
- A professor of international family law who has handled hundreds of matters concerning international child abduction and the Hague Convention
- The author of International Family Law Practice, a leading treatise on international family law, and of theHague Abduction Convention, a treatise on the Hague Convention published by the American Bar Association, and of numerous articles on international family law
- A fellow of the International Academy of Family Lawyers, a past co-chair of the International Family Law Committee of the International Law Section of the American Bar Association
- A frequent lecturer to the judiciary and to other bodies on the topic of international child custody and abduction
Notably, Mr. Morley was accepted as an expert by the Ontario Superior Court of Justice in Mahadevan v. Shankar, 2010 ONSC 5608, 98 R.F.L. (6th) 82, per Pazaratz J., where he provided an expert affidavit on securing the return of a child from India.
He has also been accepted as an expert in several other Canadian courts including:
- Shroff v. Shroff, Supreme Court of British Columbia, Canada, expert report on child custody laws of India, 2013
- Wieczorek v. Bowman, Ontario Court of Justice, Canada, regarding child custody laws and procedures of Minnesota, USA, 2018
- Koshiba v. Honeyman, Alberta Court of Queen's Bench, Canada, regarding risks of child abduction to Japan, 2018
Mr. Morley has been accepted as an expert on international child custody issues in many jurisdictions including Canada, Australia, England and the United States in respect of securing the return of children from countries around the world including India, the UAE and Singapore.
Mr. Morley has specific expertise in India as he has been retained by clients in the United States and around the world on child custody issues in India. He has researched Indian family law extensively and consulted with Indian and foreign lawyers about India-related issues. He has written numerous articles on Indian family law.
Mr. Morley has also handled many international family law matters concerning the UAE, particularly the Emirate of Dubai. He has researched UAE family law extensively, especially concerning international child custody matters. He has also lectured in Dubai to international family law lawyers from around the world and consulted with lawyers globally concerning UAE-related issues.
Stutee Nag, an attorney licensed to practice in the courts of India who was previously a law clerk in the Punjab and Haryana High Court in India, assisted Mr. Morley in the preparation of his expert report in this case.
In his expert report, Mr. Morley indicated that India has chosen not to accede to the Hague Convention, the fundamental international treaty that protects the rights of abducted children and serves to have them returned properly to the country of their habitual residence. Over a hundred contracting states have adopted the treaty, but India has purposefully chosen not to do so.
In 2009, the Law Commission of India issued a report concerning the need for India to accede to the Hague Convention. In subsequent years, the Indian government debated whether to adopt the convention but recently the Indian government announced that it would not do so for the express purpose of protecting the rights of Indian parents to take their children to live in India. None of the remedies provided in the treaty are available to deter abductions from Canada.
Mr. Morley's conclusion, based on his client and academic work regarding children abducted to India, is that “it is usually fruitless to initiate litigation there and I counsel against it unless the left-behind parent has great fortitude and very substantial funds.” He opined that “Indian courts generally do not enforce foreign custody orders. The law in India is that they are merely items to consider as part of an overall de novo custody review of the best interests of the child.”
In cross-examination, Mr. Morley explained that, in India, the trial court or court of first instance would use a de novo custody review of the “best interests of the child test”, however, the Indian courts have tremendous discretion as to how they approach that test. Then the first court's decision is reviewed by a first appeal court, and then a second appeal court. Mr. Morley described that it is “utterly unpredictable” as to whether the process would be expedited. He testified that there are many ways in which the parent who wants the child to remain in India can use the procedures of the Indian legal system to lengthen the time over which the court considers the issue. Then, given that a long time has passed, the Indian court determines that the child has become well settled in India so it would be unfair to return the child to the foreign jurisdiction.
Mr. Morley disagreed that the current state of the law in India relating to the enforcement of foreign custody orders allows for the expeditious return of the child to the custodial parent through a writ of habeas corpus. He explained that the context of habeas corpus in India for international child custody cases is very different than in Canada or the U.S., in that the Indian court has pure discretion whether to hold a summary inquiry or detailed investigation into a case. India follows a procedure of detailed, bulky, written pleadings, followed by hearing arguments at length. Depending on the workload and other matters occupying the judiciary, it is impossible to define a timeframe for deciding a child custody dispute.
Mr. Morley also disagreed with the suggestion that Indian jurisprudence since 2018 has evolved and allows for the issuance of a “mirror order” whereby an Indian court would issue an order that contains all the terms of an order of a foreign court. He indicated that, to date, mirror orders do not exist in Indian family law as doing so would contravene Indian law itself. Moreover, he clarified that there have been a couple of Indian cases where the Indian courts have asked courts in foreign jurisdictions to issue a mirror order, but that does not constitute the Indian court issuing a mirror order. …
I find that Mr. Morley's report and assessment speak more directly to the issue at hand. Once a child is taken to India, the parent seeking to repatriate the child is left with a very formidable challenge since there is no predictability to the Indian legal system which will start a de novo hearing where a foreign order is but one element of consideration in the determination of the best interests of the child. The current Indian legal system involves significant delay which then changes the facts on the ground in favour of the child remaining in India.”