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Understanding Custody Jurisdiction

Followers of this blog may recall the posts my partner Sarah Boulby and I did, in June and July 2012 respectively, on the controversial Ontario Court of Appeal case Dovigi and Razi. Well, big news to those of us in family law, counsel for the father is seeking leave to appeal the decision to the Supreme Court.

To refresh your memories, and for those just joining us, the case dealt with the appropriate jurisdiction within which to address the custody of a new born baby. Ms Razi, seven months pregnant, left Ontario to visit family in California where, a few months later, she gave birth to a daughter. Mr Dovigi, the father, had consented to the trip on the understanding that mother and baby would be returning to Ontario, where she and Mr Dovigi were permanent residents. Following the child’s birth, Ms Razi did not return to Ontario. Instead, she announced her plans to remain in California. Mr Dovigi sought the return of the child to Ontario within days of her birth, based upon Ontario’s jurisdiction over the baby. To counter that, Ms Razi argued that the birth of the child in California, along with her decision to live there with the baby, should settle the matter and give the California court custody jurisdiction to deal with the issue of custody. The motion judge invoked the court’s parens patriae jurisdiction and decided the appropriate forum was Ontario. The Court of Appeal reversed the motion judge’s decision.

Counsel for Mr Dovigi has sought leave to appeal the decision to the Supreme Court of Canada. Their position is that the jurisdiction issue addressed in the case is of import to all Canadians, given the prevalence of cross-border relationships. They argue that the May 31, 2012 decision of the Ontario Court of Appeal does not provide a clear answer to the essential question of jurisdiction, which will cause problems in the future. I have to agree.

The Court of Appeal decision seems to suggest that, other than in special circumstances, wherever the mother chooses to give birth determines the jurisdiction of the Court deciding custody. These circumstances are unclear and seem somewhat biased i.e. if we trust the courts in the other jurisdiction, if they are like us, or not. Although Mr Dovigi’s counsel is arguing that leave should be granted on a number of grounds, it is the concern about a social policy that encourages expectant mothers to leave and give birth outside of Canada in order to prevent Canadian courts from having custody jurisdiction that captures my attention.

Framed more simply, should a woman’s right to choose her domicile permit her to choose the court’s custody jurisdiction? This seems a rather unfair and arbitrary way of resolving a very serious question. What about the Ontario legislation providing the mother and father are equally entitled to custody of the child and that a determination of best interests (i.e. custody) should occur only in the jurisdiction to which the child is most closely attached? Do Canadians really believe that all parents are equal but mothers are simply more equal? (Apologies to George Orwell) Where is a newborn child’s habitual or ordinary residence?

If the Court of Appeal decision stands, then the mother’s dictates prevail and the parent giving birth is given a significant advantage. The mother would be able to unilaterally decide where to give birth, where she and the child will live and the Court to have jurisdiction in adjudicating custody. Can this be right? Do father’s rights come second to mother’s by virtue solely of the fact that mothers carry the child? We will have to wait and see.


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