McKee v. McKee

McKee v. McKee
Collection
Supreme Court Judgments
Date
1950-06-06
Report
[1950] SCR 700
Judges
Kerwin, Patrick; Taschereau, Robert; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald
On appeal from
Ontario
Subjects
Family law
Decision Content
Supreme Court of Canada
McKee v. McKee, [1950] S.C.R. 700
Date: 1950-06-06
Evelyn McKee (Plaintiff) Appellant;
and
Mark T. McKee (Defendant) Respondent.
1950: March 15, 16, 17, 20, 21; 1950: June 6.
Present: Kerwin, Taschereau, Kellock, Estey, Locke, Cartwright and Fauteux JJ.
Reporter’s Note—Petition for special leave to appeal granted by Privy Council July 24, 1950.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Infant—Custody—Habeas Corpus—Parents and child citizens of foreign State—Infant brought to Ontario by father to evade foreign Court’s Order awarding custody to mother—Manner in which general rule as to infant’s custody should be exercised—The Infants Act, R.S.O., 1937, c. 215.
Held: (Taschereau, Kellock and Fauteux JJ., dissenting), that in determining the custody of an infant the well established rule in Ontario is that the paramount consideration is the welfare of the infant and the judgment of a foreign Court as to such custody need not as a matter of binding obligation be followed. Where however, as in the case at bar, the infant and both of his parents are citizens of a friendly State in which they are all domiciled and have always resided, and when the Courts of the country to which he belongs and from which he has been improperly removed, have reached a decision that one of the parents is to have custody, and the other parent in breach of his agreement not to remove the infant from the country to which the infant belongs, and in defiance of, and solely for the purpose of evading the order of the Courts of that country, to which he had himself submitted the question of custody, brings such infant into Ontario, any jurisdiction an Ontario Court may have acquired as the result of such conduct should be exercised only for the purpose of returning the child in proper custody to the country whose subject he is.
In re B—’s Settlement [1940] 1 Ch. 54, distinguished, and questioned.
Per: Taschereau, Kellock and Fauteux JJ., dissenting: The appellant under the guise of custody proceedings asks for an order for which there is no authority outside the Extradition Act or the deportation provisions of the Immigration Act. Even if it could be said such authority resides in the executive, it has not been committed to the courts. Atty.-Gen. for Canada v. Cain [1906] A.C. 542 at 546.
There is no jurisdiction in the Courts of Ontario or in this Court to make such an order as the appellant seeks or to do otherwise than apply to the circumstances of this case the ordinary law of Ontario as to custody, giving due weight to the California decree. Whatever the position of the respondent, the infant is entitled to rely upon the protection of the court and the law of Ontario relating to infants. To grant what the appellant seeks would be to ignore these rights. Re Gay, 59 O.L.R. 40; Re Ethel Davis, 25 O.R. 579.
The courts below correctly applied the relevant law, gave proper weight to the California judgment, and the judgment in appeal should not be disturbed. APPEAL from the judgment of the Court of Appeal, Robertson, C.J.O., dissenting[1], dismissing an appeal from an Order of Wells J.[2], made in habeas corpus proceedings, awarding custody of the infant child of the parties to the respondent.
A.G. Slaght, K.C. and Peter Slaght, for the appellant.
G.H. Lochead and G.A. MacKay, for the respondent.
The judgment of Kerwin, Estey, Locke and Cartwright JJ. was delivered by
CARTWRIGHT J.:—This is an appeal from the judgment of the Court of Appeal for Ontario dismissing an appeal from an Order of Wells J., made in habeas corpus proceedings, awarding the custody of Terry Alexander McKee, an infant child of the parties, to the respondent.
The appellant is the mother and the respondent is the father of the infant. The respondent is an airlines executive and has been for more than thirty-three years an attorney of the State of Michigan. The appellant and the respondent are American citizens. They were both born in the United States of America and, until the respondent came to Ontario in December 1946 in the circumstances to be mentioned hereafter, had always lived there. They were married in Vermont in 1933. The infant was born in the State of California on the 14th of July 1940. The parties separated in December, 1940 and have not resided together since that date. Under date of the 4th of September 1941, the parties executed an agreement which is referred to in the proceedings as a property settlement agreement. This agreement does not make specific reference to the question of the custody of the infant, but it contains the following paragraph:
It is further understood and agreed that neither of the parties hereto shall remove TERRY ALEXANDER McKEE, son of the parties hereto, from or out of the United States of America without the written permission of the Party not so removing, or wishing to remove said boy from the United States of America.
On September 18, 1941 the appellant commenced an action for divorce in the Superior Court of the State of California in and for the county of Los Angeles. The respondent entered a cross-complaint for divorce. After a trial which occupied sixteen days and concluded on November 20, 1942, the Honourable Thurmond Clarke delivered judgment on December 17, 1942 dismissing the appellant’s complaint and granting the respondent a divorce on his cross-complaint. This judgment awarded the custody of the infant to the respondent, but directed that the infant should spend three months each summer with the appellant. The judgment also affirmed and approved the agreement above referred to. It was conceded before us that this judgment was valid, and that the Court had jurisdiction to pronounce it.
Subsequently, there were applications by both parties to the Superior Court of the State of California for modification of this Order and certain minor modifications were made.
In May, 1945, the respondent made an application to the same Court in California in the proceedings in which the order of December 17, 1942 as to custody had been pronounced, asking for a modification of the terms of that order as to custody. The appellant delivered a cross-application and the two applications were heard together before the Honourable Ruben S. Schmidt in June 1945. The hearing occupied five days. By order, dated August 1, 1945, the previous orders of the Court were modified to provide that full custody of the infant be awarded to the appellant with the right of reasonable visitation allowed to the respondent. It appears that the infant was not in the State of California in May 1945 when the application for modification was commenced by the respondent, but was in that State while the hearing was proceeding. The order of August 1, 1945 permitted the respondent to have the infant in Port Austin, Michigan until September 1, 1945, on which date it was ordered that the infant be delivered to the appellant in Los Angeles, California. From this order, the respondent appealed to the District Court of Appeals in California and the appeal was dismissed in November 1946. The respondent applied for a re-hearing which was denied, and then applied for leave to appeal to the Supreme Court of California and this application was denied on the 23rd of December 1946. Evidence was given that under the laws of the State of California these appeals had the effect of staying the operation of the order of August 1, 1945 until the filing of a remittitur, following their final disposition. In the result the order of August 1, 1945 did not become effective until the 13th day of January 1947, so that the infant continued to be in the custody of the respondent except that he spent three months with the appellant during the summer of 1946.
On or about the 24th of December 1946 the respondent who was then residing with the infant at Port Austin, Michigan, received word that his final appeal had failed, and he thereupon proceeded with the child into the Province of Ontario. He did this without the permission or knowledge of the appellant. The appellant was not able to discover the whereabouts of the respondent and the infant until sometime in the month of February 1947. She then instituted habeas corpus proceedings in the Supreme Court of Ontario seeking to have the infant delivered to her. Her application was supported by her own affidavit setting out the relationship of the parties, the place and date of the infant’s birth, the delivery of the judgment of the Honourable Ruben Schmidt, and the denial of the respondent’s appeal. The affidavit further stated that on or about the 24th day of December 1946, the respondent without any knowledge or consent on the part of the appellant and with intent to deprive her of the lawful custody of the infant had brought him to the city of Kitchener and was there detaining him. A copy of the judgment of the Honourable Ruben Schmidt was made an exhibit to this affidavit.
A Writ of habeas corpus was issued on 21st March 1947 pursuant to the Order of Treleaven J., and the return came before Smily J. on the 25th day of March, 1947.
By way of return to the Writ, the respondent filed a lengthy affidavit. In this he stated that at the date of his marriage to the appellant he was domiciled and ordinarily resident in the State of Michigan and had continued to be domiciled and ordinarily resident there until December 1946 when he had moved to Ontario, and that he intended to make his permanent home in Ontario. He made numerous allegations reflecting on the character of the appellant. He questioned her fitness to have the custody of the infant and stated that in his opinion it was better for the infant to be in his custody than in that of the appellant. He claimed that the order of the California Court of the 1st of August 1945 was made without jurisdiction, and would not be enforceable in the State of Michigan. As pointed out by the learned Chief Justice of Ontario, the affidavit contained no denial of the statement in the appellant’s affidavit that the respondent without any knowledge or consent on her part and with intent to deprive her of the lawful custody of the infant had brought him to the city of Kitchener.
Smily J., reserved the matter and on 2nd April 1947 gave judgment directing the trial of an issue. The question directed to be tried was “Who is to have the custody of the infant, Terry Alexander McKee, as between the said Evelyn McKee and the said Mark T. McKee?” This order did not in terms refer the final disposition of the proceedings on the Writ of habeas corpus to the judge trying the issue as it might have done under the provisions of Rule 233. An intention to so refer the matter may perhaps be implied from the term in the order providing that the costs of the motion for the Writ of habeas corpus and of the hearing before Smily J., should be disposed of by the Judge trying the issue. Wells J., before whom the issue came on for trial, proceeded as if the final determination of the whole matter had been referred to him. I do not think it necessary to decide whether the practice which was followed was technically correct. I agree with the majority of the Court of Appeal that, the matters in dispute having been fully investigated on the merits, no technical defect in procedure should now be allowed to render the proceedings abortive.
On behalf of the appellant it was urged before Wells J., as it had been before Smily J., that in view of the facts as to the citizenship, domicile and residence of the parties set out above, and as the custody of the infant had been awarded to her by the Courts of California after a full hearing in proceedings instituted by the respondent, and as it was obvious that the respondent had brought the infant to Ontario to avoid compliance with the order of the Court whose jurisdiction he had himself invoked, custody of the infant should be given to her. Wells J., however, was of the view that he was bound by authority to investigate the whole matter at length and to reach a determination as to what, in his view, would be in the best interests of the infant without being in any way bound by the California judgment, although, as he expressed it, that judgment was entitled to be given the greatest weight.
The trial before Wells J., occupied eleven days. Wells J., reserved judgment and later gave judgment awarding custody of the infant to the respondent, and giving the appellant the right of access once a week. The appellant appealed to the Court of Appeal, and the appeal was heard by Robertson C.J.O., Hogg, and Aylesworth JJ.A. The hearing of the appeal occupied six days. The appeal was dismissed, Robertson C.J.O. dissenting. The appellant then appealed to this Court.
Some of the matters which were fully argued before us appear to present little difficulty. I think that there is no doubt that the Ontario Court had jurisdiction to hear and determine the question as to which of the parties was entitled to the custody of the infant. Indeed, under the circumstances there was no way in which the appellant could obtain the custody of the infant who was in fact physically present in Ontario other than by application to the Ontario Courts. Counsel for the appellant did not question the jurisdiction of the Ontario Court, and there is nothing in the dissenting judgment of the learned Chief Justice of Ontario to suggest that he entertained any doubt that such jurisdiction existed. The question to be determined is how a jurisdiction admittedly existing should have been exercised in this particular case.
Much argument was addressed to us and reference was made to many authorities on the question whether the judgment of the California Court of August 1, 1945 was binding upon and enforceable in the Courts of Ontario. I do not think it necessary to examine the authorities. I think they make it clear that the California judgment is not binding upon the Courts of Ontario in the sense that a judgment for payment of a sum certain in money pronounced by a foreign Court, which according to the rules of Private International Law recognized in Ontario had jurisdiction over the parties, will be enforced in an action brought on such judgment in the Courts of Ontario.
In my view, it was rightly held by Wells J., and the Court of Appeal that the judgment of a foreign Court as to the custody of an infant need not as a matter of binding obligation be followed in our Courts, although great weight must be given to it. For this reason it is in my opinion of little importance to discuss whether, according to the rules of Private International Law recognized by the Courts of Ontario, the Superior Court of California had jurisdiction to pronounce the judgment of August 1, 1945; because even if that Court had jurisdiction in such sense, its judgment would not be conclusive in our Courts but only of great persuasive effect.
No doubt in Ontario the well established general rule is that in all questions relating to the custody of an infant the paramount consideration is the welfare of the infant. In my respectful opinion, however, no case to which we were referred is authority for the proposition for which counsel for the respondent was forced to contend; that where, as in the case at bar, an infant and both of his parents are citizens of a friendly foreign State in which they all are domiciled and have always resided, when the question of such infant’s custody has been fully litigated in the Courts of such State, and those Courts after full and careful hearings have reached a decision that one of the parents is to have custody, the other parent upon such decision being given, by the simple expedient of taking the child with him across the border into Ontario for the sole purpose of avoiding obedience to the judgment of the Court whose jurisdiction he himself invoked and in breach of his own agreement which had been ratified by such Court, becomes entitled as of right to have the whole question retried in our Courts, and to have them reach a new and independent judgment as to what is best for the infant.
It seems to me that to give effect to such an argument would bring about a state of confusion in matters of custody. It is now our duty after hearings in the Courts of this country which have consumed a total of twenty-two days to give the custody of this infant to one or other of the parties. If by our judgment we should approve the proposition set out above and the disappointed party should be able, by stealth or otherwise, to carry the child over the border into the Province of Manitoba, the courts of that Province would be bound by our judgment not to order that the child be handed back to the party to whom custody had just been awarded, unless and until, after reinvestigating the whole matter, as Wells J., did, from the time of the birth of the infant, they were of opinion that this was the course most likely to advance the infant’s welfare. Such a result would mean that any parent, possessing ample financial means and sufficiently lacking in respect for the orders of the Courts and for his own undertakings, could, by moving from Province to Province prolong litigation as to an infant’s custody until such infant attained his majority.
I do not mean by anything that I have said that I disagree with the view expressed by Morton J., in re B—’s Settlement[3], that the Courts of this country are not bound blindly to follow the judgment of the Court of a foreign State as to the custody of an infant who is a citizen of such State. No doubt cases have arisen in the past and may arise in the future where it would be the duty of our Courts to refuse to follow what had been decided by the Courts of a foreign country as to the proper custody of an infant who is a subject of such foreign country. Nothing would, I think, be gained by suggesting examples of such cases. In my opinion the case at bar is not one of them.
It seems to me that the following considerations are sufficient to dispose the case at bar. The infant and both of his parents are citizens of the United States and have always lived in that country. By an agreement entered into between them, they covenanted that neither of them would remove the child from the United States without the consent of the other. This agreement was confirmed by the Courts of California in a judgment which both parties concede to be a valid one. The Courts of California in 1942 gave the custody of the infant to the respondent, but clearly did not regard the appellant as being an unfit person to have the custody of the child, as she was allowed custody during three months in each year. The Courts of the same State, in an application made by the respondent, in 1945, after a full hearing, came to the conclusion, not only that the appellant was a fit person to have the custody of the child, but that it was better for the child that she should have its custody than that it should be left in the custody of the respondent. It appears that in both of these judgments the welfare of the infant was regarded as of primary importance. The respondent does not appear to have suggested in any of the proceedings in the courts of the United States that it is to the advantage of the infant that he should reside and be brought up in Ontario rather than in the United States, the country of which he is a citizen and in which his future would seem to lie, except that up to the present in Ontario the respondent has been able to retain the infant in his custody. It is clear on the evidence that the respondent removed the child to Ontario without intending any benefit to the child, other than the supposed benefit which the child would derive from remaining in the custody of the respondent. Well J. did not find that the appellant is an unfit person to have the custody of the child. After reviewing the evidence including that as to the respondent’s business interests and the material prospects of the child, the learned Judge reached the conclusion that the interests of the infant would be best served by leaving him where he is in the custody of the respondent, but there is nothing in his reasons or in the evidence to suggest that the welfare of the child would be endangered by his returning in the custody of his mother to his own country. Wells J., while observing on the practical difficulties of giving effect to such an order, directed that the mother should have access to the infant once a week.
It does not, I think, lie in the mouth of the respondent to suggest that the appellant is not a fit person to have the custody of the child, although he stoutly maintains his own greater fitness. This is shown, in my view, by the letter of the 25th of April, 1947 written by the respondent’s solicitors to the solicitors for the appellant while the Ontario proceedings were pending, and which counsel for the respondent introduced in evidence before Wells J. This letter was written in an effort to bring about a settlement and one of the proposed terms was that the infant should spend the months of July and August in each year with the appellant “at her home in California or at any other place where she may be from time to time,” and that she should have the right of access to the infant at all reasonable times during the remainder of the year.
If this litigation had arisen between persons and in respect of a child who had a normal and bona fide residence in Ontario, and a trial judge had reached the conclusion that on weighing up the various advantages and disadvantages it was on the whole more beneficial for the infant to remain with one parent, and this finding had been affirmed by the Court of Appeal, we should, I think, be very hesitant to disturb it. In my opinion however, the matter should be very differently approached when it is obvious that one of the parties has brought the child into this Province in the final moments of a protracted litigation in his own country for the purpose of avoiding obedience to the judgment of its Courts, and in deliberate disregard of his own agreement.
I think there is no difference in principle on the facts of this case from the case, suggested in argument, of a citizen of the United States fleeing that country on the day that a judgment as to custody was pronounced against him, bringing the infant with him and being served with a writ of habeas corpus issued in Ontario on the following day. There was no avoidable delay on the part of the appellant in invoking the aid of the Ontario Courts. The delay which did occur was caused by her inability to discover the whereabouts of the respondent and the infant.
Even apart from these considerations, I would think it gravely doubtful whether the order now in appeal is one which is really for the benefit of the infant. In view of the attitude of the respondent, as shown by his conduct, it would have the effect of virtually exiling the infant from his own country during his minority. It would make it substantially impossible for him to spend any time with his mother, with whom he has spent part of every year since his birth up until the year 1947. I respectfully agree with the views expressed by the learned Chief Justice of Ontario when after discussing the cases of Hope v. Hope[4], re Harding[5] and Nugent v. Vetzera[6], he says:
The facts of the present case call much more strongly than did the facts of any of the cases I have cited for the question of the custody of the infant being left to the Courts of the country to which he belongs, and from which he has been improperly removed.
and further where he says:
I cannot too strongly state my opinion that there is grave impropriety in upholding in the Courts of Ontario a claim made to the custody of an infant who is the subject of a neighbouring and friendly country, by one who has brought the infant into this Province in breach of his agreement not to remove the infant from the country to which the infant belongs, and in defiance of, and solely for the purpose of evading the order of the Courts of that country, to which Court respondent had himself submitted the question of custody. Any jurisdiction to deal with the infant that an Ontario Court may have acquired as the result of such conduct, it should exercise only for purpose of returning the child, in proper custody, to the country whose subject he is.
There is no appeal before us from the order of Smily J., but because similar cases may arise in the future I desire, with the greatest respect, to express my opinion that that learned judge should not, in the circumstances of this case as disclosed in the material before him, have directed an issue but should have directed that the child be delivered into the custody of the appellant on her undertaking to return with him to her home in the United States.
I think it desirable to say a few words in regard to the judgment of Morton J., in re B—’s Settlement, supra. Counsel for the respondent relied upon this case as supporting the judgment in appeal, and laid particular stress on the following passage, which appears to have been approved by the majority of the Court of Appeal in the case at bar:
In my view, under s. 1 of the Guardianship of Infants Act, 1925, I am bound to consider first the welfare of the infant, and to treat his welfare as being the paramount consideration. In so doing, I ought to give due weight to any views formed by the Courts of the country whereof the infant is a national. But I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of any other country. If there are any observations in the two cases cited (Nugent v. Vetzera[7], and Di Savini v. Lousada[8]) which state or imply a contrary view, these observations ought not, in my view, to be followed at the present day.
In my view the facts in that case are dissimilar from those in the case at bar. The following important differences may be noted. In that case, the mother of the infant was before her marriage a British national. Following divorce proceedings in Belgium she had returned to live in England, and had a bona fide residence there. The order of the Belgian Court granting custody to the father was an interlocutory order. Morton J., laid emphasis on this fact, and stated that he did not know how far, if at all, the matter had been considered by that Court on the footing of what was best for the child or whether it had been regarded as a matter of course that the father being the guardian by the common law of Belgium and the only parent in Belgium, should be awarded custody. This interlocutory order was made on October 5, 1937 at which time the child was apparently already in England, but was not served upon the mother until December 6, 1938, more than a year after it was made. There was no agreement between the parties that the child should not be removed from Belgium. While the report does not set out the findings of fact made by Morton J., and we are left to speculate as to their precise nature, they were such as to move that learned Judge to say: “At the moment my feeling is very strong that even assuming in the father’s favour, that there is nothing in his character or habits which would render him unfit to have the custody of the child, the welfare of the child requires in all the circumstances as they exist that he should remain in England for the time being.” Morton J. laid considerable stress on the wording of Section 1 of the Guardianship of Infants Act 1925, which differs substantially from that of the corresponding section of the Infants Act of Ontario.
The judgment of Morton J. has been the subject of some comment and criticism (See the Journal of Comparative Legislation and International Law, Vol. 22 Third Series, page 234; 21 British Year Book of International. Law pages 204-205; 4 Modern Law Review page 64 and Cheshire on Private International Law 3rd Edition (1947) pages 537 and 538). In Schmitthoff on Conflict of Laws (1945 at page 285, the judgment is treated as one explaining and depending upon the terms of Section 1 of the Guardianship of Infants Act 1925, referred to above. While, I think that, on the facts, this case is clearly distinguishable from the case at bar, I think it desirable to state my opinion that the proposition laid down in the passage quoted above should not be held to state the law of Ontario applicable to such a case as the one now before us.
I venture to think that neither Wells J., nor the majority of the Court of Appeal attached sufficient importance to the agreement between the parties providing that the child should not be removed from the United States without the consent of both parties. This agreement appears to me to be reasonable as between the parties and in the best interests of the child. As mentioned, it received the approval of the Superior Court in California in a judgment admitted to be valid. I do not think that any case was made out to warrant the Court sanctioning what the learned trial judge properly describes as an obvious and flagrant breach of this agreement on the part of the respondent. I do not find anything in the record to suggest that it was to the advantage of the infant that he should be taken out of the United States of America.
In the result, in my opinion, the appeal should be allowed and an order should be made, reciting the undertakings given by the appellant at the hearing that she will forthwith return with the infant, Terry Alexander McKee, to the United States of America and will keep the respondent fully advised as to his whereabouts and directing that the appellant do have the custody of the said infant and that the respondent do deliver the said infant into the custody of the appellant at the Office of the Registrar of the Supreme Court of Ontario at Osgoode Hall, Toronto, on Wednesday the 14th day of June 1950 between the hours of 10 and 11 o’clock in the forenoon, Eastern Standard Time.
No doubt the respondent should be allowed reasonable access to the infant, but I do not think that any useful purpose would be served by our seeking to define in this order the terms on which such access shall be had. The primary purpose of the proposed order is that the infant may be taken back to his own country, from which, in my opinion, he ought never to have been removed. No doubt, if the parties cannot agree, the Courts of his own country will make whatever order appears desirable as to access. No reference to access should be made in the formal order of the Court.
The appellant should have her costs throughout, including the costs of the motion to quash the appeal to this Court, the issue and service of the Writ of habeas corpus, the proceedings before Smily J., the issue and execution of the Commission or Commissions to take evidence, and any interlocutory proceedings the costs of which have not already been disposed of other than the appellant’s motion to this Court for an order extending the time for completing the appeal as to which there should be no order as to costs. In taxing the costs of the motion to quash, consideration should be given to the fact that at the time that motion was launched the respondent was entitled to move on the ground of delay in completing the appeal.
The judgment of Taschereau, Kellock and Fauteux JJ., dissenting, was delivered by
KELLOCK J.:—The appellant seeks to set aside the judgment of the Court of Appeal for Ontario affirming the judgment at trial of Wells J. dismissing her application for judgment awarding her the custody of the infant here in question as against the respondent, the husband and father. Counsel for the appellant, in his argument before this Court, rested his case primarily upon (1) a judgment of the Superior Court of the State of California, dated the 1st of August, 1945, and (2) an agreement of the 4th of December, 1941, made after the parties had separated, in paragraph 5 of which it was agreed that neither of the parties would remove the infant in question out of the United States without the written permission of the other. The findings of the learned trial judge as to where the interests and welfare of the child lay were not and could not, in my opinion, be seriously challenged. The position of the appellant is that, because the parties to the proceedings and the infant are citizens of the United States of America and were domiciled and resident therein at all times prior to December, 1946, when the respondent brought his son to Ontario (it is said to avoid the effect of the California judgment affirmed on or about the 23rd of December, 1946, but not effective prior to the 13th of January, 1947), the courts of Ontario, as a matter of comity, ought not to exercise their jurisdiction over the infant further than to ensure his return to “his own country.” The actual order which the appellant seeks is one awarding her the custody of the infant on her undertaking that she will forthwith return with him to the United States, and its primary purpose is not that it should be made from the standpoint of the welfare of the child, but merely to effect his removal from Ontario, not necessarily to California, but to one of the states of the Union. The question, therefore, which lies at the threshold of this case is as to whether the courts of Ontario, in the circumstances of this case, have a discretion enabling them in effect simply to deport the child, or whether they must apply the ordinary law of Ontario relating to custody of children.
It is not irrelevant to observe at the outset that the contention put forward on the part of the appellant involves an effect being given to the California judgment which would appear to be beyond the effect which, as stated in Ruling Case Law, vol. 9, page 477, sec. 293, would be given to it, in the circumstances here present, in any of the states of the Union even under the full faith and credit clause of the federal constitution of the United States. The authors there point out that the authorities in the United States are in conflict as to the extraterritorial effect of a judgment awarding the custody of the children upon the divorce of the parents (which is the type of judgment in question in the case at bar), some cases holding that, while the judgment is res judicata in the state of its rendition and elsewhere so far as the parents are concerned, it is not res judicata as to the right of some other state where the children may subsequently be to determine the custody of the children as their welfare may require, while other authorities sustain the proposition that where a decree of divorce fixing the custody of the children of the marriage is rendered in accordance with the laws of another state by a court of competent jurisdiction, such decree will be given full force and effect in other states so long as the circumstances attending the adoption of the decree remain the same. According to the above text, it is clear on the authorities that, whatever may be the ruling adopted, a foreign decree or order of the character under consideration is not a bar to a subsequent proceeding looking to its modification because of altered conditions since the time of its rendition, where such altered conditions make modification desirable and for the better welfare of the child. A glance at some of the authorities is instructive.
In Re Bort[9], the parents were divorced in Wisconsin where they both resided, the father being awarded custody of the children. Pending the proceedings, the wife removed the children to Kansas where the father took habeas corpus proceedings invoking the Wisconsin judgment and the full faith and credit clause of the federal constitution. The judgment of the court was given by Brewer J., later a member of the United States Supreme Court, who pointed out that the claim of the petitioner appeared to rest on the assumption that parents have some property rights in the possession of their children, which doctrine had been repudiated by the courts of Massachusetts. The Court did not put its judgment on that basis, however, but proceeded on the basis that as between the parents, the Wisconsin judgment was a finality, but that
We undersand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that * * * In a divorce suit the court is limited to the question: which of the two parents is the better custodian of the children? The decision only determines the rights of the parties inter se. But in this proceeding the question is: What do the best interests of the children require?
In People ex. rel. Allen v. Allen[10], the wife commenced an action for divorce in the Supreme Court of Illinois in which the husband appeared. In the course of the proceedings, the latter was enjoined from keeping the children of the marriage out of the state until the further order of the court. The judgment in the action awarded the custody to the mother who subsequently took habeas corpus proceedings in New York to obtain custody of the children. It was found as a fact that when the parties separated, custody of the children remained by agreement with the father upon the understanding that he would not remove them from Illinois without giving the mother notice of his intention so to do and an opportunity to visit them. This undertaking had been violated by the defendant. In the course of his judgment, Haight J. said at page 620:
To our mind, the Constitution covers the question under consideration, and it is our duty to give full faith and credit to the decree of the Illinois court. We do not, however, regard the decree of that court as binding upon the infants, but it is binding upon the parents, the parties to the action. The infants at the time, being of such tender years as to be unable to choose for themselves as to their custodian, became the wards of the court, and it was the duty of the court to choose for them. The court, in choosing for them, was required to consider the best interest and welfare of the children. Its decision became binding upon the children only for the time being, and as soon as the circumstances of the custodian changed, or other circumstances arose which would make it for the best interests of the children that there should be a change, it would be the duty of the court in which the decree was originally made, or of any court having jurisdiction, to make such change. But as between the parties to the action, the parents of the children, they are bound by the matters adjudged and determined in the action, and cannot again retry the question therein determined.
Upon the merits, the mother was awarded custody.
The Court of Appeals dismissed an appeal of the father:
For the reason that the courts below, upon the view of all the existing facts related to the welfare and interests of the infants, exercised their discretion in awarding to the mother the custody of the children; and in so doing, gave to the Illinois decree not the force of an estoppel or the conclusive effect sometimes due to a judgment, but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised without dictating or controlling it.
In Slack v. Perrine[11], the Court of Appeals of the District of Columbia had to consider a judgment rendered in the Court of Chancery in New Jersey in proceedings instituted at a time when that court had jurisdiction over the parties, but d