Ontario Superior Court Judge Assumes Jurisdiction Over Two Children, Habitually Resident in Saudi Arabia

In an unusual decision released October 5, 2007, the Ontario Superior Court of Justice relied on its parens patriae power to assume jurisdiction over two children who habitually resided with their father in Saudi Arabia at the time of the hearing.

In Johnson v. Athimootil, Ontario Superior Court Judge Alison Harvison Young court concluded that while the Ontario court does not have statutory jurisdiction over the children under the Children’s Law Reform Act, it was an appropriate case, nonethless, to assume jurisdiction over their custody on the basis of the Court's parens patriae jurisdiction.

Parens patriae jurisdiction refers to the inherent, overriding power of the Court to intervene to protect the best interests of children, where legislation does not fully provide for or anticipate children's needs in a specific circumstance.

In this case, the family had moved from Kuwait to Toronto. They resided in Canada for five years and became Canadian citizens. In September 2006, they moved to Saudi Arabia for the father’s employment. In early 2007, while the family was visiting India from Saudi Arabia, the father and the two oldest children returned to Saudi Arabia. The mother and youngest child returned to Canada. A provincial court ordered interim custody of the youngest child to the mother, who now sought custody of the two older children.

The Court found that Sections 22 and 23 of the CLRA did not apply to give the court statutory jurisdiction over the children who resided in Saudi Arabia:

• the children were habitually resident in Saudi Arabia;


• they were not present in Ontario when the application was started;


• they had not been abducted;


• there was no risk of serious harm to them.

However, neither party submitted evidence of their immigration status in Saudi Arabia, and there was no evidence before the court as to whether the parents would have standing to bring a custody application there. It was also not clear that the father would commence proceedings in Saudi Arabia.

The court held that if the Ontario court denied jurisdiction, there might be no court that could or would assume jurisdiction. This was a gap in the legislation not contemplated by the drafters, the court held.

The court granted the mother interim sole custody of the two older children and ordered the father to return them to the mother.

Note that the Kingdom of Saudi Arabia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

It seems clear that had the Hague Convention applied, the Ontario court would have been required by the Convention to decline jurisdiction over the custody of the two children habitually residing elsewhere.

- Shashi Raina, Toronto

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