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McKee v McKee

George Lochead QC

In 1951 our firm founder, George Lochead, QC, argued a high profile custody case before the Judicial Committee of the Privy Council in the UK.

 

Mark T. McKee was a wealthy vice-president of Pan-American Airlines. He was the father of 12 children, 11 from a previous marriage. The case concerned who would have custody of Terry McKee, the only child of his nine-year marriage to Evelyn McKee.

 

The earliest available press reports concern the couple's bitter divorce trial in Los Angeles in 1942. As reported in the L.A. Times, Evelyn McKee said that she was treated as the "head wife in a harem".

 

Mark McKee accused Evelyn of having an affair with a married man with whom she intended to flee with her son to South America, never to return. The trial judge ordered that Terry McKee, then two years old, was to live with Mark McKee for 9 months of the year and with Evelyn McKee over the summer months.

 

Things went from bad to worse after the initial custody order. Cynthia McKee was one of the child's caregivers. She was Mark McKee's daughter from his previous marriage, but she had sided with Evelyn McKee in the custody dispute. As reported in the Chicago Tribune, when the police attended at Evelyn McKee’s home to enforce the order, they discovered that Cynthia had fled with Terry to prevent her father from taking custody. The police conducted a state-wide search. Cynthia and Terry McKee were found and Terry was returned to his father.

 

The custody battle erupted again in 1945 when each of Mark and Evelyn McKee applied to a Los Angeles court for full custody of Terry. This time Evelyn McKee alleged that Mark McKee was leaving the child in the care of elderly servants in a remote and often snowbound location in Michigan. The California Court granted custody to Evelyn McKee. Mr. McKee appealed to the California Court of Appeal and lost.

 

Mr. McKee evaded the California custody order by fleeing to Kitchener, Ontario, with his son. Ms. McKee followed them to Kitchener and asked the Ontario High Court of Justice to enforce the California custody order. It was at this point that Mark McKee hired George Lochead as his lawyer. A key issue in the dispute was whether the Ontario Court should simply enforce the California custody order or whether it needed to perform its own assessment of the best interests of the child. A thirteen day trial was held. After the trial, Justice Wells determined that the best interests of the child required him to remain in the care of his father (Re McKee, [1947] OR 819 (Ont SC)). The result, which is surprising from a modern day vantage point, was driven in part by the judge’s distaste for Ms. McKee's efforts to publicize the dispute:

 

[…] when Ms. McKee returned to Kitchener to commence the proceedings that culminated in this issue, she visited .. the home where Terry was being kept by his father, complete with a reporter and a news photographer from the Detroit Daily News, who took picture of her Michigan attorney and herself vainly knocking at the door to see her infant child. One would think that this method of publicizing her difficulties would indicate a sense of drama which had perhaps taken possession of her to the exclusion of any real affection for her son, but of course it may be merely that customs and practices in these matters vary. In any event, conduct of this sort, and the rather hysterical publicity which she apparently supplied to newspapers in Detroit, Kitchener, and Toronto, would tend to shake one’s faith in her as the proper person to bring up a boy of seven, […]

 

Ms. McKee appealed the order to the Ontario Court of Appeal (McKee v McKee, [1948] OJ No 490 (Ont CA)) and then the Supreme Court of Canada (McKee v McKee, [1950] SCR 700(SCC)). The Supreme Court of Canada sided with Evelyn McKee, ruling that the trial judge erred by re-assessing the best interest of the child after the issue had been fully litigated in the California Courts. The Supreme Court of Canada was concerned that if a full re-assessment of the best interests of the child was required in every custody case, it would encourage the losers of custody battles to evade custody orders and re-litigate the issue in a different jurisdiction. Justice Cartwright of the Supreme Court of Canada wrote:

 

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.

 

Today a ruling by the Supreme Court of Canada is final. The right to appeal a Supreme Court of Canada case to the Judicial Committee of the Privy Council was abolished in 1949, one year before the Supreme Court of Canada decision in the McKee case. However, the statute that abolished the right of appeal to the Judicial Committee of the Privy Council did not apply to cases that were started before 1949. McKee v McKee fell within the exception.

 

In 1950 Mr. McKee appealed the decision of the Supreme Court of Canada to the Judicial Committee of the Privy Council (McKee v McKee, [1951] AC 352 (UK JCPC)). As at the Supreme Court of Canada, the issue before the Judicial Committee was whether the trial judge ought to have fully re-assessed the best interests of the child or simply enforced the California custody order. As reported in the decision, George Lochead argued that, “If [the Ontario Court] had jurisdiction, they had no right to abdicate it, but must exercise it, and it could only be exercised by considering the welfare of the child.” The Privy Council did not go so far as to say that a full reassessment of the best interest of the child was always necessary, but they said that it was appropriate where the circumstances had changed since the foreign custody order was made. At page 364 of the decision, Lord Simons said that there were new circumstances in the case that justified the reassessment of the best interests of Terry McKee that was undertaken by the trial judge:

 

In the present case there was ample reason for the trial Judge, in the first place, forming the opinion that he should not take the drastic course of following it without independent enquiry and, in the second place, coming to a different conclusion as to what was for the infant's benefit. For not only was the child two years older at an age when two years make a material difference, but the facts, which, as appeared upon the face of the Californian order, had influenced that Court had substantially changed. No longer was the choice between California and "a place not accessible, snowbound in winter": no longer was the child under the care and supervision for most of the time of aged employees hired by the father, nor' was he many miles from adequate transportation and adequate school facilities. This conspicuous change of circumstances demanded an independent enquiry, and their Lordships see no reason for thinking that the learned Judge, whose full and exhaustive enquiry they have already recognised, came to a wrong conclusion.

 

Therefore, the Judicial Committee of the Privy Council reversed the decision of the Supreme Court of Canada, restored the decision of the trial judge, and awarded custody of Terry McKee to his father, Mark McKee. Mark McKee had finally won full custody of Terry McKee.

 

Firm lore has long held that McKee v McKee was the last Canadian case that was heard by the Judicial Committee of the Privy Council. That turns out not to be true. Although McKee v McKee was among the last, the very last Canadian case heard by the Judicial Committee of the Privy Council was the 1959 case of Ponoka-Calmar Oils v Wakefield.

 

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Readers are advised to seek specific legal advice in relation to any decision or course of action contemplated.

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