As I discussed last week, determining what court has the jurisdiction to hear a family law case involving child-related issues depends on where the child is habitually resident, which is often a complicated question to answer. Consider the story of this family.
The father is a Canadian citizen, who has lived and worked as a lawyer outside Canada for most of his career. The mother is an Iranian citizen, who is also a permanent resident of Canada. They met in Malaysia, got married in Japan and lived in the United Arab Emirates and Oman before coming to Ontario. Their return to Oman, originally scheduled for April 2020, had to be postponed because of the pandemic, so they remained in Ontario, where their child was born. After a brief return to Oman in early 2021 because of an employment opportunity for the father, they came back to Ontario because the father had found a job here.
Approximately a month after this, they separated following an incident of intimate partner violence that resulted in criminal charges being laid against the father. This took place at a chalet the parents owned in Quebec. In her statement to the police, the mother said there had been a pattern of violence throughout the relationship.
The father now lives in Oman, and the mother has remained in Ontario with their child.
What is this young child’s habitual residence?
Enter the law
Each parent began family court proceedings where they were living, with the father bringing a motion to challenge the jurisdiction of Ontario courts and to have the child returned to his care in Oman. (Oman is not a signatory to the Hague Convention, meaning the mother could not rely on it for assistance should the father succeed in having the child returned to his care there.)
The father’s motion in the Ontario Superior Court of Justice was unsuccessful. The motion judge concluded that the child was habitually resident in Ontario, noting:
- She did not need to find that the parties had a settled intention to remain in Ontario to find that it was the child’s habitual residence
- After the child’s birth, the father turned down employment in Oman
- The family bought one-way tickets to Canada, rented an apartment and bought furniture for it
- Once here, the father got an Ontario health card and a job
- The father told the mother that he would rather be in Canada than elsewhere
- When the father sponsored the mother for permanent residency status, he said that he intended to move to and live in Toronto
The motion judge also found that the Ontario courts would have had jurisdiction even if the child had not been habitually resident here, because the legislative criteria in section 22(1)(b) of the Children’s Law Reform Act (CLRA) had been met:
- The child was physically present in Ontario when the proceedings began
- Substantial evidence about the best interests of the child was available in Ontario
- No application relating to the child was pending elsewhere
- No orders from elsewhere had been recognized by an Ontario court
- The child had a real and substantial connection with Ontario, and
- On a balance of convenience, it was appropriate for jurisdiction to be exercised in Ontario
The father appealed to the Ontario Court of Appeal, which unanimously found that the motion judge’s decision was owed “a high degree of deference as it was grounded in a careful review of the evidence and the motion judge’s credibility findings.”
The father then appealed to the Supreme Court of Canada, seeking an order returning the child to Iman and declaring that Ontario had no jurisdiction to make parenting orders and that the child had been wrongfully retained in Ontario.
The Supremes
“A court faced with the question of whether the child was habitually resident in Ontario at the commencement of the application must, then, simply ask whether the child ‘resided’ there at the prescribed time.”
Because the CLRA does not provide a definition of “reside,” the court turned to the ordinary meaning of the word: simply to live or be at home in a place, in whatever form that takes.
“One way of expressing what It means to be residing somewhere, rather than merely sojourning or visiting, is that a child resides where they are at home.”
The Supreme Court decision also noted:
“As in any family law context, a court determining residence must also appreciate the evidence in light of the dynamics of the particular family, being especially alert to gender dynamics and the presence of family violence.”
The Supreme Court rejected the father’s argument that there had to be a shared parental intention for a child to be habitually resident somewhere:
“The legislature directs us to where the child actually resided, not where the parents agreed the child would reside. The vulnerability of the shared parental intention approach to manipulation is particularly relevant in cases involving family violence.” (emphasis mine)
The majority of the Supreme Court found there was no basis to interfere with the motion judge’s finding that Ontario had jurisdiction because the child was habitually resident here. This means that the child can remain in Ontario with his mother and the parenting case will take place here.