“Section 22 of the CLRA sets out the circumstances under which a court in Ontario has jurisdiction over parenting and contact orders. Section 22(1)(a) specifies that the “court shall only exercise its jurisdiction” over such orders where “the child is habitually resident in Ontario at the commencement of the application for the order”. Section 22(2) defines a child’s habitual residence as including where a child resides in Ontario with one parent with the other parent’s “consent, implied consent or acquiescence”:
(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
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- With both parents.
- If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the otheror under a court order.
- With a person other than a parent on a permanent basis for a significant period of time. [Emphasis added.]
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Section 22(1)(b) also provides that a court in Ontario can exercise jurisdiction where a child is not habitually resident in Ontario but the court is satisfied that the following circumstances exist:
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Section 22(3) specifies that a child’s habitual residence is not Ontario where the child has been taken to Ontario in the following circumstances:
The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.
Finally, s. 23 of the CLRA provides that, despite s. 22, the court in Ontario can exercise its jurisdiction over a parenting or contact order where the child is physically present in Ontario and the court is satisfied that the child would suffer serious harm if:
(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,
(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or
(iii) the child is removed from Ontario.
As noted by the motion judge, in Dovigi v. Razi, 2012 ONCA 361, 110 O.R. (3d) 593, leave to appeal refused, [2012] S.C.C.A. No. 348, at paras. 9 to 13, this court specified that there are four different circumstances in which a court in Ontario has jurisdiction to make an order respecting child custody (now referred to as parenting time and decision-making responsibility) under the CLRA:
The CLRA contemplates only four ways in which an Ontario court can exercise its jurisdiction to make an order for custody of a child.
First, under s. 22(1)(a) of the CLRA, an Ontario court may make an order for custody of a child where the child is “habitually resident” in Ontario.
Second, under s. 22(1)(b), where the child is not habitually resident in Ontario, the court may exercise jurisdiction if the child is physically present in Ontario and other requirements are met.
Third, under s. 23, a court has jurisdiction to make an order for custody where the child is physically present in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm under certain specified circumstances set out in the Act.
Fourth, the court may exercise its parens patriae jurisdiction,
which is specifically preserved by s. 69 of the CLRA.”