Marshall v. Fournelle

Marshall v. Fournelle

The trial judge's findings that the girl, then over 14 years 8 months, freely and intelligently chose to remain with the respondent, coupled with the assessment that her welfare favored remaining there and no undue restraint was proved, justified the refusal of the writ of habeas corpus; the appellate court will not overturn that judicial discretion absent improvidence.

Citation
[1927] SCR 48
Parties
Appellant (mother): Dame Mary W. Marshall; Respondent (defendant): Alderic A. Fournelle
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 December 1926
Procedural Posture
Habeas Corpus (custody Dispute) / Appeal to Supreme Court of Canada From Court of King’s Bench; Judgment on Appeal
Outcome
Appeal dismissed; judgment of the Court of King’s Bench affirmed
Legal Topics
Parental Rights, Child's Choice of Residence, Judicial Discretion, Best Interests of the Child
Source Language
English
Family Law Habeas Corpus Prerogative Writs Child Custody Parental Rights Child's Choice of Residence Judicial Discretion Best Interests of the Child

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Parties

Dame Mary W. Marshall

Appellant (mother)

Alderic A. Fournelle

Respondent (defendant)

Procedural Posture

Habeas Corpus (custody Dispute) / Appeal to Supreme Court of Canada From Court of King’s Bench; Judgment on Appeal

Legal Issues

  1. 1 Whether mother was entitled to possession of her minor daughter by writ of habeas corpus
  2. 2 Whether a girl aged over 14 can lawfully choose where to live and that choice should be respected
  3. 3 Whether the respondent unlawfully restrained the child such as to justify habeas corpus relief

Ratio Decidendi

The trial judge's findings that the girl, then over 14 years 8 months, freely and intelligently chose to remain with the respondent, coupled with the assessment that her welfare favored remaining there and no undue restraint was proved, justified the refusal of the writ of habeas corpus; the appellate court will not overturn that judicial discretion absent improvidence.

Court Disposition

Appeal dismissed; judgment of the Court of King’s Bench affirmed

Orders

  • Writ of habeas corpus quashed
  • Appeal dismissed with costs