“Under s. 22 of the CLRA, an Ontario court can assume jurisdiction over a mater with respect to a child if the child was habitually resident in Ontario at the commencement of the application for the order, or if all of the conditions under s. 22(1)(b) are met.
22(2) defines “habitual residence” as follows
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 other or under a court order.
- With a person other than a parent on a permanent basis for a significant period of time, whichever last occurrred.
- 22(3) provides that the removal of the child from the jurisdiction in which he or she is habitually resident, or withholding return of the child to the jurisdiction without the consent of the person having custody of 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.
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In determining the child’s habitual residence, facts arising after they have been wrongfully removed are irrelevant to the analysis (see: Ellis v. Wentzell-Ellis, 2010 ONCA 347 (CanLII). Unilateral steps taken by the removing parent in an effort to establish a real and substantial connection between the child and the new jurisdiction should be given little weight in support of a claim for jurisdiction (see: Hibbert v. Escano, 2010 ONSC 1445 at para 21).
In Korenic v DePotter, 2022 ONSC 3954, Dubé J. stated at para 22 that s. 22(1)(a) does not require the court to find a settled intention that the children reside with both parents in a certain place for an appreciable period of time or, as is specifically mentioned under paragraph 3 of s. 22(2), on a permanent basis for any significant period of time. Habitual residency is deemed under paragraph 1 of s. 22(2) when the last to occur was that the children resided with both parents at a certain place, even if on a temporary or test case basis.”