août 24. 2020

Parens Patriae: The Children's Law Reform Act (taking or declining jurisdiction)

Dovigi v. Razi, 2012 ONCA 361 (CanLII)

In Dovigi v Razi the pregnant mother left Ontario in order to have her baby in California. The baby therefore never lived in Ontario, never lived there with both parents, and was at all material times situated in California which court had taken jurisdiction.

The Father asked the Ontario court to order the return of the child, which Kiteley J. did using s.69 parens patriae as her Swiss army knife of legal tools. Apparently, the Ontario legislation had failed to say: if you are pregnant in Ontario, and you (Mom) move elsewhere to give birth, well then, Ontario still has ‘habitual residence’. Yet another example of that Frankenstein of international law creation (habitual residence).

Kiteley J. was relying upon Harvison Young J. in Johnson v. Athimootil who used parens patriae to pull two lost children back from Saudi Arabia. Harvison Young J. made a big deal of the fact that Saudi Arabia had not taken jurisdiction. She should have stayed silent on that problematic possibility. What if Saudi Arabia had taken jurisdiction? Granted, s.22 of the CLRA asks whether another court has taken jurisdiction, but is Canadian law going to give the same jurisdictional deference to Saudi Arabia that Canadian judges properly give to the United States? The very fact that this possibility exists is yet another example of the Frankenstein of international law.

Side-note on Johnson v Athimootil:

Harvison Young in Johnson v. Athmootil then did a questionable thing to get to the right result. She invoked parens patriae to cover ‘uncontemplated situations’, as if the existence of a one child in Canada and two out of Canada was a parens patriae situation.

Harvison Young (in Johnson v. Athimootil) was on better ground when she found ‘real and substantial connection’ between Ontario and the lost boys (in Saudi Arabia).

To get to her Ontario result however, Harvison Young relied too heavily upon the fact that all the ‘international comity’ factors were absent. So what? That those factors were absent? Don’t hang your hat on that ‘comity’ hook. If you start playing up international comity, by definition you are playing down Charter rights. Even in the oldest pre-Charter Canadian case returning a child to the United States (McKee v McKee), the SCC minority loudly protests the infringing of individual rights. Today, when McLaughlin lauds international comity in child return jurisprudence (Balev at para 35), she throws Charter rights under the bus. This tension, between the Charter and Canadian courts tendency to send children out of Canada without due process, has not been resolved.

Back to Dovigi v. Razi

Notwithstanding California taking jurisdiction, Kiteley took jurisdiction for Ontario on the basis (para 24) that there was a ‘gap in establishing habitual residence’ because mom left Ontario.

This was manifestly a bad idea. (No child in Ontario, no ‘habitual residence’ in Ontario, California is the other place, California took jurisdiction). Kiteley’s reasoning is poor but explainable. She wanted to take jurisdiction. Ontario judges faced with a child situation, properly feel an impetus to take jurisdiction. It is understandable and enunciated in parens patriae. So Kiteley found herself making unsound statements about what parens patriae should do. All in the face of a satisfactory alternative in California.

Can Dovigi v. Razi reasoning then be used in cases that are not California? (i.e. non-Hague). Johnson v. Athimootil has been studiously avoided by the ONCA though it has been addressed in three ONSC situations.