Where should a custody case be heard?

The case of Dovigi v Razi [2012] O.J. No. 2418 2012 ONCA 361, which deals with this issue, was heard by the Ontario Court of Appeal.

During her pregnancy, the woman ended her relationship with her partner. When she was 7 months pregnant, she left Ontario, where the couple had been living, and went to California for a visit. The baby was born there, and then the mother indicated she intended to remain there and become a permanent resident.

The father brought a motion to find jurisdiction in Ontario while the mother was still in the hospital from giving birth, arguing that the child, who had never lived in Ontario, was habitually resident in both Ontario and California. The Motions Court Judge agreed with the father, which would have required the child to be returned to Ontario so the custody case could be held here.

The mother appealed to the Court of Appeal, arguing that she had a clear and settled intention to live in California and that, as the child had never lived anywhere else, it was also the child’s habitual residence.

The Court of Appeal ruled that the Ontario court did not have jurisdiction and that there was no need for it to invoke its parens patriae jurisdiction to hear the case. It said the child had no habitual residence but, since the child was physically in California and since the custody and access legislation of California was very similar to that in Ontario, the California court had jurisdiction.

This is an important decision that has significant implications in cases where a pregnant woman leaves her abusive partner while pregnant and the abuser seeks to control her movements.

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