11/22/2012 10:56 EST | Updated 01/22/2013 05:12 EST

Ont. woman's right to choose place of birth stands; SCOC won't hear appeal

TORONTO - Two Canadian parents will have to fight over custody of their child in the U.S. after Canada's top court declined to hear an appeal in a legal battle activists feared could hurt a pregnant woman's right to choose where to have her baby.

The dispute erupted after the mother left Ontario for California when she was seven months pregnant and decided to give birth there.

The father, Patrick Dovigi, called the refusal by the Supreme Court to hear the case a "terrible" decision that left him bitterly disappointed.

"There's lots of language after the child is born about mobility rights and best interests of the child and continuous contact with both parents and it deters jurisdictional shopping," Dovigi said.

"This is just a loophole."

Dovigi, 33, of Toronto, said he had believed the mom, Mojdeh Razi, 36, an interior designer, was only taking a vacation and would return to Canada for the birth.

After baby Audrey was born in January, Dovigi, a waste-management entrepreneur, started custody and access proceedings in Ontario Superior Court.

He argued Ontario should have jurisdiction. Razi argued California should sort things out.

The Women's Legal Education and Action Fund warned the case had "important repercussions" for the equality, autonomy, and mobility rights of pregnant women.

Initially, Ontario Superior Court Justice Frances Kiteley sided with Dovigi, a one-time NHL-drafted goalie.

What Razi had done, Kiteley found, was "analogous to abduction" and could not go unchallenged.

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

The legal action fund warned Kiteley's ruling would effectively have prevented a pregnant woman from moving without the consent of the father.

"The requirement to obtain the father's consent would be particularly dangerous in situations where women are abused," the fund said.

Razi appealed to the Ontario Court of Appeal, which quashed Kiteley's ruling.

Among other things, the Appeal Court found that California's laws and procedures are similar to those of Ontario, that parents have equal rights, and the courts make decisions based on the best interests of the child.

Dovigi had wanted the Supreme Court to get involved.

He said he wasn't arguing with a mother's right to choose where to live, only that a father should not have to fight child-custody issues in whatever country she happens to decide on.

He also noted a custody trial in California is likely many months away.

Ironically, California wants Ontario courts to deal with matters of child support.

As is customary, the Supreme Court gave no reasons for refusing to hear the case.