Factum not filed, as leave to intervene was denied

Ont. CA Judgment

Appeal from 2012 ONSC 1199

This case has important repercussions for the equality, autonomy, and mobility rights of pregnant women.

In this case, a woman who became pregnant in Ontario decided to move to California when she was seven months pregnant. She gave birth to the child in California, and they continue to reside there together. Immediately following the birth of the child, the father started custody and access proceedings in Ontario.

An Ontario family law judge found that Ontario has jurisdiction over custody and access issues related to the child. In her reasons, the judge stated that the mother’s move was “analogous to child abduction.”

The judgment was successfully appealed. If the judgment had been upheld, it would have had serious consequences for women. It would have meant that pregnant women were effectively prevented from moving without the consent of the father. If a pregnant woman moved without consent, she would have risked being dragged back to litigate custody in a jurisdiction where she may have no home or support. The requirement to obtain the father’s consent would be particularly dangerous in situations where women are abused. Further, if moving without consent is tantamount to abduction, women could find themselves subject to criminal prosecution if they leave the jurisdiction and refuse to return.

Requiring a woman to obtain permission from a man with whom she may have no ongoing relationship or contact is a serious infringement of women’s Charter rights. The trial decision flew in the face of Supreme Court of Canada jurisprudence that repeatedly affirms women’s rights to control our own bodies, including the right to decide whether to continue or terminate a pregnancy. Surely the right to bodily autonomy must include the right to decide where to live while pregnant, and where to give birth.

LEAF was ultimately denied leave to intervene in the appeal. However, many of the above arguments were raised at the appeal, and LEAF applauds the decision of the Ontario Court of Appeal upholding the appeal and the Supreme Court of Canada’s refusal to hear further appeal.

LEAF Factum (unfiled)

Ont. CA Judgment