Jurisdiction Wrongly Assumed – Court falls into “legislative gap” in ruling on Custody and Access

The Ontario Court of Appeal’s recent decision in Dovigi v. Razi commented both on the court’s exercise of its parens patriaejurisdiction and the appropriate course of action for a court asked to rule on custody and access where the child in question is not “habitually resident” in Ontario, as required by s. 22 of the Children’s Law Reform Act.

Background

This case presented a unique set of facts. During her pregnancy, the mother traveled to California for what the father understood to be a visit. While there, she gave birth to the child and decided to become a permanent resident of the state. The father commenced an application for temporary and permanent custody in Ontario. The mother subsequently commenced custody proceedings in California.

Lower Court Ruling

Since the child was not physically resident in Ontario at the time that the father’s application was commenced, the motion judge held that the court could not invoke its jurisdiction on the basis of the Children’s Law Reform Act, which requires the child to be habitually resident in order for the court to exercise its authority.

However, the judge felt that this constituted a legislative gap in the statute, as it appeared that the child had no habitual residence whatsoever under the legislation.

On this basis, and on the judge’s finding that both parties had a real and substantial connection to Ontario, the court invoked its parens patriae jurisdiction, a power which enables the court to act to protect persons who are legally unable to act on their own.

In this case, the motion judge found that the use of the parens patriae power was justified in order to protect the child and to protect the expectation of both parties that the child would be parented in Ontario. As a result, the court assumed jurisdiction of the matter.

The mother appealed.

Court of Appeal Ruling

In overturning the lower court’s decision, the Court of Appeal held that the motion judge was correct to find that the circumstances of the child did not fall within the ambit of s. 22 of the Children’s Law Reform Act.

Where the lower court erred, however, was in finding a statutory gap where none existed. According to the Court of Appeal’s decision:

“The fact that circumstances fall outside a definition may be a matter of legislative design rather than legislative oversight. Discerning the legislative design requires a close consideration of the legislation”.

In closely reading the Children’s Law Reform Act, the Court of Appeal highlighted s. 22(2)(b) of the statute, which specifies that where a child is living with one parent in Ontario, the child still does not fall under the statute’s definition of “habitually resident” unless the child’s residence is in accordance with a Separation Agreement, consent or court order. As such, the fact that the child in this case was living with the mother in California without a separation agreement, consent or court order no more indicated a legislative gap than if the child was living under the same circumstances in Ontario.

With respect to the lower court’s exercise of the parens patriae power, the Court of Appeal found that there was no evidence that it was necessary for a court in Ontario to act for the protection of the child in this case. In particular, the court in California had taken jurisdiction with respect to custody, the procedures of the California courts were found to be similar to Ontario, and as in this province, the best interests of the child would be the governing factor in the court’s determination.

On this basis, the Court of Appeal allowed the mother’s appeal and dismissed the father’s application for a lack of jurisdiction.

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