Mckee v Mckee

1951. February 13, 14, 15, 19. Gahan and G. H. Lochead (of the Canadian Bar) for the appellant. Whether or not the appellant was in breach of the agreement of September 4, 1941. and in spite of his intention undoubtedly being to forestall any possible operation of the Californian decision, he came into Ontario with the intention of making a permanent home there for himself and the infant on a farm which he already owned there. The submission is, therefore, that when he went into Ontario he was domiciled and ordinarily resident there. Smily, J. (who directed the trial of the issue as to custody), Wells, J., who tried it, two of the three judges in the Court of Appeal for Ontario, and three out of seven judges in the Supreme Court of Canada held that the court in Ontario was competent and indeed, bound to examine the case with the welfare of the infant as the paramount consideration, and those judges held that in the interests of the infant the proper order was that the appellant should have the custody of the child. The Chief Justice in the Court of Appeal for Ontario and four of the judges in the Supreme Count of Canada held that the appellant and the respondent were citizens of the United States of America, that the courts in Ontario should rid themselves of this dispute between foreigners, and that therefore custody should be given to the respondent on her undertaking forthwith to take the child out of Ontario into the United States. It is submitted that that order was without justification, and that there is neither authority nor principle for such an order being made on such an undertaking. Throughout in a custody case the paramount consideration is the welfare and benefit of the infant: Infants Act, R.S.O. 1937, c. 215, s. 1. Anything that any of the parties did having any bearing on the welfare of this child was a proper fact which could and ought to have been taken into consideration, and any circumstances similarly affecting the child's welfare ought properly to be considered. Put at its highest, the relevant clause in the agreement of September 4, 1941, was a matter which ought not to have weighed to any great extent in deciding on the welfare of the infant. In any event, there are strong grounds for thinking that that agreement at the material time was not an operative agreement. Even if there had been a deliberate disregard of the agreement, that would not interfere with the court's exercise of its discretion; the relevance of the point is as to what sort of a man the appellant is.

Wells, J., put the agreement at the highest that it could be put against the appellant, and he also gave to the Californian judgment the greatest weight which, in his view, it could possibly have as a valid judgment, and he came to the right conclusion, and his order should be restored. With regard to the question of jurisdiction and the weight to be attached to the order of a foreign court in custody matters, the circumstances in In re Ethel Davis^F1, where the Canadian court exercised jurisdiction, were not unlike those of the present case. That case was followed in In re Chisholm^F2. On this point In re Gay^F3 has been described as the leading case in Ontario. Next, the effect of the authorities throughout, up to and including In re B.'s Settlement^F4, has been to establish that in custody questions the welfare of the child has always been the dominant consideration: Stuart v. Bute (Marquis)^F5; Ward v. Laverty^F6; In re Laurin^F7; De Laurier v. Jackson^F8; In re B.'s Settlement^F4; and M'Lean v. M'Lean^F9. Nugent v. Vetzera^F10 was relied on by the Chief Justice of Ontario as showing that there is some principle inconsistent with the rule of the benefit of the infant; there is nothing in that case which supports that view. [Reference in this connexion was also made to Di Savini v. Lousada^F11.] Once the infant had come into Ontario from the United States there was a duty in the Canadian court to investigate the welfare of the child, and the circumstances in which he came into Ontario are merely factors to be taken into account in considering his welfare. The issue was properly directed to ascertain what order that welfare required, and the grounds as set forth in the judgment of Wells, J., and in those judgments which upheld it were sound and fully justified the order which he made.

Lochead followed. Apart from his view as to the effect of the breach of the agreement of September 4, 1941, the judgment of the Chief Justice of Ontario amounts to an abdication of jurisdiction by the courts of Ontario to do anything else but virtually enforce the Californian judgment. That view, it is submitted, was reversed by the Supreme Court of Canada, Cartwright, J., expressly finding that the Ontario courts had jurisdiction to entertain the question of custody. If they had jurisdiction, they had no right to abdicate it, but must exercise it, and it could only be exercised by considering the welfare of the child.

Conolly Gage for the respondent. It is conceded that the Ontario court had jurisdiction to go into this matter of custody. There is, however, no absolute duty or obligation laid on the court to go anew into the whole of the facts of a custody question if it feels in the particular circumstances of the case that it is inexpedient in the interests of the child to do so, or that it also...