What are some features of a habeas corpus proceedings involving the custody of a child?

Manitoba, Canada


The following excerpt is from Popperl v. Popperl, 1982 CanLII 3000 (MB CA):

And in the monograph, The Law of Habeas Corpus in Canada, Professor Harvey, at pp. 25-6, mentions two features about habeas corpus proceedings involving the custody of children: Firstly, the courts are not so insistent upon the requisite of actual detention for it is considered that a child cannot have a liberty which is contrary to the wish of his or her legal guardian. That is to say, in the case of a child who has been wrongfully taken from the custody of his or her legal guardian, the courts will on habeas corpus consider there to be a sufficient deprivation of liberty even though the child in fact has freedom of movement and is not being restrained by actual physical force [see 11 Hals., at p. 779, para. 1469]. Secondly, the courts have always exercised a somewhat "larger jurisdiction" in regard to habeas corpus proceedings involving the custody of children. In addition to merely setting the infant free from illegal restraint, the courts actually decide between conflicting claims as in whom legal custody rests and to whom custody ought to be awarded. These features of habeas corpus proceedings involving the custody of children were outlined by Rinfret, J. in the leading case of Stevenson v. Florant, 1925 CanLII 51 (SCC), [1925] S.C.R. 532, [1925] 4 D.L.R. 530.

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