“Section 22(1)(a) of the Children’s Law Reform Act provides that this Court shall only exercise its jurisdiction to make a parenting order with respect to a child if the child is habitually resident in Ontario at the commencement of the application or the order. Notably, the time to consider habitual residence is at the commencement of the application for the order. Implicitly, this means that conduct following the beginning of the Ontario application is presumptively not relevant to the determination of habitual residence: see section 22(1) of the Children’s Law Reform Act; see also Los v. Ross ¶ 38.
Section 22(2) defines the term “habitually resident” as 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.
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Although neither side’s facta nor his or her oral arguments particularly averred to this, the law respecting how the meaning of “habitually resident” in section 22(1)(a) of the Children’s Law Reform Act has been statutorily interpreted, may be currently unsettled.
For example, at ¶ 74-76 of Zafar v. Azeem, Fairburn A.C.J.O. cited the Supreme Court’s decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16 in interpreting the meaning of habitual residence, even though Zafar v. Azeem was not decided under the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), but rather under other parts of the Children’s Law Reform Act. There, she wrote that the question is not simply about asking and answering where the child last lived during what period of time. While important, so too are a number of other factors, that McLachlin C.J. described in Office of the Children’s Lawyer v. Balev as “all relevant links and circumstances”, including parental intention.
The Court in Zafar v. Azeem, was nevertheless influenced by the fact that the child was just three years old, and had spent her entire young life in the mother’s primary care. The child had yet to develop any connection to school, to community or friends. In the result, Fairburn A.C.J.O. found that on these facts, determining “parental intent” was key to determining habitual residence, despite the other aspects of the hybrid test in Office of the Children’s Lawyer v. Balev. See also the approach taken by the Ontario Court of Appeal in Los v. Ross ¶ 31.
Perhaps, but not necessarily in contrast, in Dunmore v. Mehralian, 2023 ONCA 806, on appeal to the Ontario Court of Appeal the father argued that the motions judge did not consider the “settled intention” of both parties in determining that the child was habitually resident in Ontario. He argued that the parents did not have a shared intention to move to Toronto when they travelled here. He argued that they were merely visiting Ontario temporarily, and planned to return to the Middle East: see ¶ 35.
Although the motions judge determined that she did not have to decide that precise issue, and while she noted certain credibility concerns respecting the evidence of both parties, she ultimately preferred the mother’s evidence. She found that the parties had in fact decided to move to Toronto. They were not merely temporarily visiting. The Court of Appeal found that this was a finding of fact, that was entitled to deference.
In the result, the Ontario Court of Appeal concluded that there was no reviewable error in the motion judge’s factual finding that the parties were residing in Ontario at the relevant time. The motion judge’s factual finding was sufficient to establish habitual residence for the purposes of section 22(1)(a): see ¶ 37-44.
Leave to appeal to the Supreme Court of Canada was granted in Dunmore v. Mehralian on June 13, 2024. That appeal may very concern the proper interpretation of habitual residence under the Children’s Law Reform Act.
Regardless, section 22(2)(2.) of the Children’s Law Reform Act provides that the determination about where a child is habitually resident does not turn solely on where that child last lived with both parents. Section 22(2)(2.) of the Children’s Law Reform Act contemplates that the children’s habitual residence may have changed to Ontario if, at the commencement of the application, the parents were living separate and apart, and the children were living “with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order”. As acquiescence has been argued, the legal principles that define it must be set out in order to be applied correctly.
While in some instances, the Ontario Court of Appeal has turned to the jurisprudence interpreting the Hague Convention, to aid or guide the interpretation of the statutory language in the Children’s Law Reform Act (see above), that has not been universally done. Examples include when the procedure is different as between the Hague Convention and the Children’s Law Reform Act (see again Zafar v. Azeem ¶ 42; see also Geliedan v. Rawdah, 2020 ONCA 254), or when the statutory language is notably different: see Ojeikere v. Ojeikere, 2018 ONCA 372 ¶ 51-62. Still, at ¶ 34 of Geliedan v. Rawdah, when considering the differing processes for return applications under section 40 of the Children’s Law Reform Act distinct from the process under the Hague Convention, the Ontario Court of Appeal nevertheless wrote that considerations taken into account (under the Hague Convention and section 40 of the Children’s Law Reform Act) may overlap.”