Zaman v. Khan: Canadian Citizens Outside of Canada are not Bound by Canadian Law

Zaman v. Khan is a case about jurisdiction. The mother applied for custody of and/or access to one of her sons, who lived in Qatar with his father. The child was a Canadian citizen because his father became a Canadian citizen when he lived in Ontario from 1998 to 2002. The family lived together in Ontario, but only briefly. The family moved back to Qatar where the parents separated and the mother returned to Ontario.

The mother argued that Ontario should exercise jurisdiction over this case because the laws in Qatar were disrespectful to women and did not take the best interests of children into account. Unfortunately for the mother, she had no acceptable evidence regarding the laws in Qatar so Justice Bielby could not make any decisions regarding their fairness.

Ontario courts did not have jurisdiction to hear this case because the test for jurisdiction, as stated in section 22 of the Children’s Law Reform Act, was not met and parens patriae (a legal doctrine that allows courts to assume jurisdiction where they find a gap in the legislation in issue) did not apply.

The mother relied on a British Columbia case, Yassin v. Loubani, to argue that Ontario should have jurisdiction because Canadian citizens should be bound and protected by Canadian law wherever they go. Justice Bielby held that Yassin v. Loubani was wrongly decided because it was based on the outdated 19th century principle that British subjects require the protection of the Crown wherever they travel. He stated that although reasonable in the 19th century, this principle is not appropriate in the 21st century where the law provides rules for determining which venue is the most appropriate jurisdiction.

This case shows that Canadian laws do not follow Canadians wherever they go and that if you plan to on arguing that foreign laws are contrary to Canadian policy respecting the rights of all persons, you had better provide proof of this assertion.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. Any time a party is applying to the court for a remedy that person is required to put forth their best and strongest evidence in support of what it is that they are asking for. If you are going to argue that the court of another country is not available to you to pursue your claims related to your child, downloading an article from the internet will not help you. A letter from a lawyer in the country whose legal system you are complaining about is not enough either. The problem with such a thing is that the author of the letter is not swearing or confirming that the contents of the letter are true. As a result, what you are relying on in the support of your case is not going to be given much weight by a judge.

    I am very surprised that the Ontario court did not give more weight in their reasons to the Mother’s claim that she would not be able to get into Qatar to defend the Husband’s claim for custody. It appears that perhaps the Mother did not provide hard evidence that she would not be in a position to defend the claim for custody by her Husband in Qatar as she could not enter the country.

    Not seeing the evidence presented by the Mother in this matter, I would be interested in knowing why the Mother did not pursue the return of the children to Pakistan once the school year was completed. The summary of the Order suggests the Qatar Islamic Civil Court may have left it open for the child to travel once school was completed.

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