Zaman v. Khan: Canadian Citizens Outside of Canada are not Bound by Canadian Law
Zaman v. Khan is a case about jurisdiction. The mother applied for custody of and/or access to one of her sons, who lived in Qatar with his father. The child was a Canadian citizen because his father became a Canadian citizen when he lived in Ontario from 1998 to 2002. The family lived together in Ontario, but only briefly. The family moved back to Qatar where the parents separated and the mother returned to Ontario.
The mother argued that Ontario should exercise jurisdiction over this case because the laws in Qatar were disrespectful to women and did not take the best interests of children into account. Unfortunately for the mother, she had no acceptable evidence regarding the laws in Qatar so Justice Bielby could not make any decisions regarding their fairness.
Ontario courts did not have jurisdiction to hear this case because the test for jurisdiction, as stated in section 22 of the Children’s Law Reform Act, was not met and parens patriae (a legal doctrine that allows courts to assume jurisdiction where they find a gap in the legislation in issue) did not apply.
The mother relied on a British Columbia case, Yassin v. Loubani, to argue that Ontario should have jurisdiction because Canadian citizens should be bound and protected by Canadian law wherever they go. Justice Bielby held that Yassin v. Loubaniwas wrongly decided because it was based on the outdated 19th century principle that British subjects require the protection of the Crown wherever they travel. He stated that although reasonable in the 19th century, this principle is not appropriate in the 21st century where the law provides rules for determining which venue is the most appropriate jurisdiction.
This case shows that Canadian laws do not follow Canadians wherever they go and that if you plan to on arguing that foreign laws are contrary to Canadian policy respecting the rights of all persons, you had better provide proof of this assertion.