“Second, Mr. Logan relies on Kong v Song, 2019 BCCA 84 at paras 72-75, from the B.C. Court of Appeal which stands for the proposition that this Court must look at the statutory definition when determining the habitual place of residence of children, and also the parties’ intention. He was not able to point to appellate authority from Ontario for the same proposition. He argues that the evidence shows that the parties’ intention was that the children would return to Victoria, and that British Columbia would remain their habitual place of residence.
Ms. Logan’s counsel referred the Court to Korenic v DePotter, 2022 ONSC 3954 for the proposition that it is not necessary to examine the parties’ settled intention – all that is necessary is to meet the deeming provision for habitual residence as defined in s. 22(2) of the CLRA. In Korenic, Dubé J. stated at para 22:
The respondent argues that paragraph 1 of s. 22(2) requires a settled intention to reside for an appreciable period of time. I do not agree. The plain wording of paragraph 1 of s. 22(2) defines the term “habitually resident”: see Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA), 2004 ONCA 5548, 188 O.A.C. 376, at paras. 8-9; Markowski v. Krochak, 2022 ONSC 2497, at paras. 62-66. That definition does not require 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. Simply put, habitual residency is deemed under paragraph 1 of s. 22(2) when, as in this case, 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.
I agree with Dubé J.’s reasoning in Korenic. In this case, it is not necessary to examine the parties’ settled intention because paragraph 2 of s. 22(2) deems the children to be habitually resident in Ontario because they are residing in Ontario with Ms. Logan pursuant to a separation agreement that did not conclude, with certainty, that the children would return to Victoria in July 2022.”