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The Ontario Court of Appeal for shared custody

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Have Baby, Will Travel: a Shared Custody case

The May 31, 2012 Ontario Court of Appeal’s decision in Dovigi v Razi 2012 ONCA 361 has attracted a lot of attention. The family law bar and the general public are divided on whether the appeal court got it right. The implications of the decision are far reaching. This may be one that the Supreme Court of Canada has to settle once and for all.

My partner, Sarah Boulby, blogged insightfully on this very case on June 12, 2012. She and I have somewhat different views on what the case stands for and whether or not it was rightly decided. I thought that, this week, I would share my thoughts on the case.

The facts are straightforward. The parents resided in Ontario during the course of their relationship. When she was 7 months pregnant, Mother left Ontario for what Father understood to be a visit to family in Los Angeles. Father did not know Mother intended to remain and give birth in California until her counsel advised as much two months later.

Days after Audrey was born in Los Angeles, Father started an Ontario Children’s Law Reform Act (CLRA) application for shared custody. Six days later, Mother commenced a sole custody petition in California.

Kiteley J. heard the Ontario jurisdiction motion. Her Honour found that Audrey was not physically present in Ontario when the application was commenced, nor was she habitually resident here in accordance with the CLRA. Audrey’s lack of habitual residence under the statute was held to be an uncontemplated gap permitting Ontario to invoke parens patriae jurisdiction and decide custody.

Mother made a constitutional argument that pregnant women had the right to unrestricted mobility as provided for and protected by the Charter. Although Kiteley J. acknowledged Ontario could neither limit Mother’s choice of where to live, nor make a ruling concerning a foetus, the judge did not believe that Mother, by voting with her feet, decided which jurisdiction. Kiteley J. observed that to decline custody jurisdiction would be rewarding the pregnant Mother for orchestrating a situation arguably analogous to abduction.

The Court of Appeal allowed Mother’s appeal and declined jurisdiction, holding Ontario had neither legislated nor parens patriae jurisdiction. The Court agreed that Audrey’s circumstances fell outside the CLRA, but did not consider this to be a legislative gap such that parens patriae jurisdiction applied. The Court found such intervention was only appropriate where a need to act to protect the child existed, lacking in this case for two reasons.

First, the Court held that, since California had similar laws and would apply the best interests test, it was an acceptable forum for custody. In my view, the fact that California shared custody law resembles Ontario law cannot be the reason to either decline or accept jurisdiction. What if Mother, who was Iranian, had moved back to Iran to give birth? On current reasoning, it seems the Court would have employed parens patriae jurisdiction to return the case to Ontario. Surely whether or not we like a country’s custody policy or politics cannot be the basis for an exercise of jurisdiction. Moreover, I question the protection restriction the Court placed on parens patriae jurisdiction. This same Court has previously held parens patriae applies not only where a child needs protection but also where a gap in the legislation exists. Clearly there is a gap here, but the Court refused to step into the breach.

Second, the Court would not take jurisdiction to protect the expectation that [Audrey] would be parented in Ontario. Juriansz J.A. found it was an error to pre-decide that it was in Audrey’s best interests to be parented in Ontario, since that determination should be made by the court with jurisdiction. Again, in my opinion, this comes down to trusting California. And, without ever saying as much, it also comes down to the Court’s tacit acceptance of the likely result: infant Audrey being raised by Mother in Los Angeles, although both parents resided and planned to parent in Ontario.

Father’s argument that an infant’s habitual residence must be where one or both parents reside seems an imminently logical and defensible position. Neither parent ought to be preferred because of biology. Certainly, a parent should not be rewarded for hijacking the location of a child’s birth to gain the considerable benefit of jurisdiction in custody litigation. The reasons for Ontario to take jurisdiction are not based on either pregnancy or birth location. Instead, Ontario’s jurisdiction turns on: (i) the parties’ common intention to raise Audrey here; (ii) Mother’s stated intention to return after the birth; and (iii) the evidence of the parties’ respective parenting ability was here.

The issue is not a novel one. Other cases have addressed the habitual residence of a new born baby. A 2008 S.C.J. case out of Sarnia was decided consistent with the principles articulated by Kiteley J. The answer is anything but clear. I am not suggesting women should be tied to a location simply because that is where they got pregnant – the so called jurisdiction of conception. Nor am I a proponent of a mother being forced to secure consent to relocate while pregnant. A woman has the absolute right to make decisions regarding her body and residence while pregnant. I do not agree, however, that the right to relocate during pregnancy extends to Mother’s location dictating the natural and appropriate jurisdiction to determine matters of custody.

Where a father demonstrates a committed desire to parent, it seems unfair for a mother to be able to eliminate or reduce his participation by moving before the baby is born. In most cases, the father will not have the funds to challenge the pregnant mother’s change of jurisdiction. So, unless we are prepared to reward either the moneyed or the moving parent (often one and the same), there must be an impartial resolution. To consider an infant’s habitual residence to be that of one or both of its parents seems reasonable. In contested cases, the determination of the infant’s habitual residence will be difficult, requiring early mini-trials to secure jurisdiction rulings. But this approach seems better than the current state of the law as articulated by the Court of Appeal which risks allowing mothers to win by exercising self-help.

PHOTOGRAPHY BY PEASAP

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