McKee v. McKee

McKee v. McKee

Where a child and both parents are citizens and domiciled in a friendly foreign state and a foreign court after full hearings has awarded custody, if one parent removes the child to Ontario in breach of an agreement and solely to evade the foreign order, any jurisdiction acquired by Ontario should be exercised to return the child to his country of nationality and domicile rather than to retry custody as of right; foreign custody orders are persuasive but welfare remains paramount.

Citation
[1950] SCR 700
Parties
Appellant (mother): Evelyn McKee; Respondent (father): Mark T. McKee
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 June 1950
Procedural Posture
Habeas Corpus Custody Appeal / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario (original Habeas Corpus Proceedings in Ontario)
Outcome
Appeal allowed (majority): custody awarded to appellant with order for return to United States
Legal Topics
Infant Custody, Recognition and Weight of Foreign Custody Judgments, Domicile and Citizenship, Parental Agreement Restricting Removal
Source Language
English
Family Law Conflict of Laws Private International Law Habeas Corpus Infant Custody Recognition and Weight of Foreign Custody Judgments Domicile and Citizenship Parental Agreement Restricting Removal

Case Brief

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Parties

Evelyn McKee

Appellant (mother)

Mark T. McKee

Respondent (father)

Procedural Posture

Habeas Corpus Custody Appeal / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario (original Habeas Corpus Proceedings in Ontario)

Legal Issues

  1. 1 Whether Ontario courts are bound to give conclusive effect to a foreign custody order
  2. 2 How Ontario courts should exercise jurisdiction when a parent removes a child to Ontario to evade a foreign custody order
  3. 3 What weight to accord to a parental agreement not to remove a child from its country

Ratio Decidendi

Where a child and both parents are citizens and domiciled in a friendly foreign state and a foreign court after full hearings has awarded custody, if one parent removes the child to Ontario in breach of an agreement and solely to evade the foreign order, any jurisdiction acquired by Ontario should be exercised to return the child to his country of nationality and domicile rather than to retry custody as of right; foreign custody orders are persuasive but welfare remains paramount.

Court Disposition

Appeal allowed (majority): custody awarded to appellant with order for return to United States

Orders

  • Appeal allowed; appellant Evelyn McKee awarded custody of infant Terry Alexander McKee
  • Respondent Mark T. McKee ordered to deliver the infant into the custody of the appellant at the Office of the Registrar of the Supreme Court of Ontario at Osgoode Hall, Toronto, on 14 June 1950 between 10 and 11 a.m. EST