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June 22nd, 2012 by Robert Franklin, Esq.
A Canadian appellate court has overturned a lower court ruling that called a pregnant woman’s move out of country “analogous to abduction.”  Specifically, the lower court had ruled that the Canadian courts had jurisdiction of the case because the circumstances of the woman’s departure for the United States were akin to parental abduction.  The appellate court disagreed, saying that, since the child was born in California and had never lived in Canada, California courts and California law should decide the issues of child custody and presumably the child’s status under the Hague Convention on the Civil Aspects of Parental Child Abduction.  Read about it here (Winnipeg Free Press, 6/1/12).

To anyone familiar with international child abduction cases, this one looks very familiar.  The mother, Mojdeh Razi, was seven months pregnant when she told the child’s father, Patrick Dovigi, that she was going to California to visit family.  She never came back.  That’s all familiar enough; it seems to happen that way every time, and had the child been previously born, an unquestionable case of abduction.  But in this case, once she gave birth in January, Dovigi filed suit in Ontario asserting his parental rights and demanding custody.  Razi then apparently decided her chances were better in California, so she stayed there.

In her decision, [Ontario Superior Court Justice Frances] Kiteley said it appeared Razi only decided to stay in California after Audrey’s birth and was “probably” in response to Dovigi’s court action in Ontario.

“I do not agree that the mobility rights of a pregnant mother automatically determine jurisdiction over the child,” Kiteley said.

“To decline to take jurisdiction in these circumstances would be to encourage a pregnant mother to depart from the original jurisdiction in circumstances that are arguably analogous to abduction.”

That’s what it looks like from here.  After all, in terms of parental abduction, it matters little whether the child has been born or not.  If the child goes with the mother, it’s still abduction irrespective of whether the child is in utero or not.  Of course if the mother had left of necessity as, for example, to seek needed medical care, that would be different.  But here, the trial judge thought her intention was to deprive the father of contact with his child which Razi’s departure clearly has done.  Otherwise, why not come back to the place that’s been their home for years and whose courts are fully capable of adjudicating parental rights and duties?  But Razi has refused to do that for reasons that were clear enough to Justice Kiteley, but which escaped the notice of the appellate judges.

“The circumstances of this case… simply do not give rise to any protection concern,” the Appeal Court ruling states.

“California’s laws and procedures are similar to those of Ontario, parents have equal rights, and the best interests of the child is the principle upon which judgments pertaining to the child are made.”

That’s an interesting concept.  Let’s see, according to the appellate court, a father’s right to contact with his child and a child’s right to contact with its father “simply do not give rise to any protection concern.”  Well, I suppose we should give the judges something for their honesty.  That’s putting fathers’ rights to their children and children’s rights to their fathers about as succinctly as can be.  Those are rights that don’t need to be protected.

Has Dovigi once set eyes on his daughter?  Apparently not, nor vice versa.  She’s going on five months old now and has no clue about what her father looks like, feels like.  She’s never been held by him, sung to by him, bathed, kissed, cuddled by him.  Of course the longer that goes on, the more of a stranger he’ll become and, as we all know, custody battles can last a long time.  How much alienation of the father needs to go on before some court somewhere will contradict the august Canadian judges and say that Dovigi’s right to his daughter and hers to him are rights that “need to be protected?”

Once again, a court has rubber stamped the actions of a mother that come very close to being criminal and that have one clear result and one clear purpose – to cut a father out of his child’s life.  We see this frequently.  Mothers effectively control fathers’ exercise of their parental rights and courts every day give them a pass.  And so it is in the Dovigi vs. Razi case.

Of course advocates for women’s rights heartily approve of the appellate court’s decision.

The Women’s Legal Education and Action Fund, which sought unsuccessfully to intervene in the appeal, said the case could have had “important repercussions” for the equality, autonomy and mobility rights of pregnant women.

For one thing, the fund said, Kiteley’s ruling — if it had stood — would effectively have prevented a pregnant woman from moving without the consent of the father — an infringement on her rights.

That’s just laughable nonsense.  Not a word of Justice Kiteley’s ruling would have prevented Razi from doing anything or going anywhere.  What it would have done is require her to fight her custody battles in Canada, where Dovigi is and where they’d lived for many years.  Clearly, Razi or any other woman can come and go as she pleases.  What she wouldn’t have been able to do, had the lower court’s ruling stood, would have been to travel thousands of miles away in order to deprive a fit father of all contact with his daughter.  But to the appellate court, that’s just fine, thank you.

As happens so frequently, a court has ruled that a mother’s decision to remove a father from his child’s life is of no legal consequence.  Dovigi now gets to attempt to litigate the matter at a distance of thousands of miles in a foreign court.  Even if he eventually wins some form of contact with his child, much damage will already have been done.  And imagine trying to exercise the minimal visitation rights California courts routinely toss fathers’ way at that great distance.  It’s all but a practical impossibility.

Fathers and children; they’re still strangers in family court.  Only the mother’s desires seem to matter.

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