août 23. 2020

Ultra Vires: assuming s.40(3) of the Ontario Children's Law Reform Act is ultra vires the province, can s.69 (parens patriae) authorize judicial orders 'returning' Canadian citizen children out of Canada?

Crawford v. Dixon, 2001 CanLII 28121 (ON SC)

Faced with the possibility that s.40(3) of the Children’s Law Reform Act is ultra vires the province of Ontario, does parens patriae jurisdiction in CLRA s.69 permit an alternative jurisdiction to return?

s.40(3) of the Children’s Law Reform Act was introduced as a corollary to Canada’s adoption of the Hague Convention on Civil Aspects of International Child Abduction. The mechanics work like an extradition treaty: the parent from the other signatory country, brings an application in an Ontario court for an order that the child be ‘returned’ to the other country.

The constitutionally-suspect elements of Hague rules (and return rules in general) are the following:

the CLRA s.40(3) allows a foreign parent of a child to apply in an Ontario court for an order that the Ontario court return the child to such place as the court considers appropriate.

Judges have relied upon this section to thereby send children, without due process, to numerous non-Hague places (Botswana, Peru, United Arab Emirates).

Faced with the possibility that s.40(3) of the Children’s Law Reform Act is ultra vires the province of Ontario, superior court judges have now begun to cast around for ammunition to keep their child-return policies on track and avoid constitutionally-minimum due process.

When confronted with the possible ultra vires of s.40(3) can resort be had to the parens patriae jurisdiction stated in CLRA s.69 which says:

69. Jurisdiction of the Superior Court of Justice This Part does not deprive the Superior Court of Justice of its parens patriae jurisdiction.

But can s.69 parens patriae jurisdiction withstand an ultra vires attack?

What is parens patriae jurisdiction? Every Ontario Superior Court Judge knows it is, in effect, the inherent jurisdiction brought down from ‘time immemorial’ from the Court of Chancery. But what is that?

Granger J explained it by citing Lord Esher, M.R., in R. v. Gyngall, [1893] 2 Q.B. 232 at p. 238, a decision of the Court of Appeal in England,

“But there was another and an absolutely different and distinguishable jurisdiction, which has been exercised by the Court of Chancery from time immemorial. That was not a jurisdiction to determine rights as between a parent and a stranger, or as between a parent and a child. It was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in the place of a parent, and as if it were the parent of the child, thus superseding the natural guardianship of the parent."

Every Ontario Superior Court judge knows that the Ontario Superior Court exercises all the jurisdiction of both common law and equity (i.e. the Court of Chancery). (CJA s.11(2)).

The relevance of this fact is that there is no such thing in Ontario as ‘another and absolutely different and distinguishable jurisdiction’.

What this means is that when legislation writes out how the court will deal with removal of a child from Ontario, there is no ‘parens patriae’ jurisdiction which somehow allows an Ontario superior court judge to pretend that there is ‘another and absolutely different and distinguishable jurisdiction’, which that judge can use to deport a child if s.40(3) is found to be ultra vires.

If s.40(3) is ultra vires, there is no further, separate and distinct, power under s.69 to resurrect an Ontario superior court judge’s power to return.

So what does Granger’s citation say about parens patriae?

As for the substance of parens patriae, the reader can see from the Granger citation and from their own experience in family court, that parens patriae is ever used to protect the best interests of the child against all parties. Does this not imply a constitutionally-minimum due process best interests test (as per s. 24), be applied before any judicial return order?

So why do all the Ontario return cases avoid use of the best interest test, defaulting rather to a requirement upon the parent coming to Canada with the child to demonstrate severe harm (CLRA s.23)?

When that parent fails to prove serious harm, there is no further best interest analysis.

The Ontario superior court seems ready to look to CLRA s.69 parens patriae to overcome a possible failure of CLRA s.40(3) to sustain orders of return.

If CLRA s.69 can be used to overcome a potential ultra vires failure in s.40(3), why isn't parens patriae equally available to require a best interest analysis as the minimum permissible test when removing a Canadian citizen child from Canada?

The question was answered by Granger: once the legislature has spoken parens patriae is exhausted. It cannot be resurrected to implicitly contradict legislation. That's what Granger (correctly) said. What have judges dealing with orders 'returning' children said about 'parens patriae'?