ONTARIO COURT OF JUSTICE
BETWEEN:
Alexandria Bipatnath
Applicant
— AND —
Jared Eugene Tso
Respondent
Before Justice W. Kapurura
Heard on May 29, 2026
Reasons for Judgment released on June 17, 2026
Guneet Johar.......................................................................................... counsel for the applicant
Nisha Baig........................................................................................... counsel for the respondent
JUSTICE W.KAPURURA:
Part One – Introduction
1The respondent (the father) has brought a motion seeking a determination of this court’s jurisdiction regarding the parties’ four-year-old child, E (the child).
2The father is an American citizen and resides in Sanders, Arizona, U.S.A. He is Indigenous to the lands of the Navajo Nation in Arizona and currently resides on the reserve lands.
3The child is registered with the Navajo Indian Blood Registry.
4The mother is a Canadian citizen, and resides in Toronto, Ontario, Canada. She was born and raised in Ontario. She is a member of the Shawanaga First Nation in Ontario.
5The child has resided primarily in Toronto, with the applicant (the mother) since October 2023.
6The father asks the court to find that it has no jurisdiction to make a parenting order with respect to the child. He argues that the Navajo Nation Family Court in Arizona has jurisdiction. He has a family court application currently before the Navajo Nation Family Court.
7The mother states that the child was habitually resident in Ontario at the commencement of her application, and asks the court to assume jurisdiction pursuant to section 22 of the Children’s Law Reform Act (the Act). She asks the court to dismiss the father’s request.
8The father is not seeking the return of the child to the Navajo Nation, even though he argues that the child has been wrongfully withheld in Ontario by the mother. He agrees with the mother that the child was not wrongfully removed from the Navajo Nation to Ontario. He is disputing jurisdiction only.
9Both parties are legally represented in this proceeding.
10In their materials, both parties concede, albeit for different reasons, that the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) does not apply. The father submits that the Hague Convention is inapplicable because the Navajo Nation is not a signatory. The mother, by contrast, maintains that the child was neither wrongfully removed from the Navajo Nation nor wrongfully retained in Ontario.
11The issues in this case are as follows:
a. Does the court have the jurisdiction to make a parenting order with respect to the child? In particular,
i. Was the child habitually resident in Ontario at the commencement of this proceeding?
ii. If not, does the evidence satisfy the requirements under clause 22(1)(b) of the Act to allow this court to exercise jurisdiction?
b. If the court determines that it has jurisdiction, should it decline jurisdiction pursuant to section 25 of the Act?
Part Two – Background Facts
12The mother is 30 years old, and the father is 31 years old.
13The parties met around 2019 and began dating in January 2020.
14During the first few months of their relationship, the father resided in Albuquerque, New Mexico, U.S.A. The mother resided in Newmarket, Ontario, Canada.
15Around March 2020, the mother moved to Albuquerque to be closer to the father. She resided there for six months. During that time, she discovered she was pregnant. She returned to Newmarket, Ontario, in September 2020, to receive her family's support during the early stages of her pregnancy.
16In January 2021, the father travelled to Canada. The parties resided together in Hamilton, Ontario, for about six months.
17The child was born in Toronto, Ontario, in 2021, and is a Canadian citizen by birth.
18The parties moved to Sanders, Arizona, in July 2021. They resided together in Sanders from July 2021 until October 2023.
19The parties separated in October 2023, and the mother moved back to Ontario with the child. The father signed a consent to allow the mother to travel with the child to Canada.1 She has remained in Ontario with the child.
20In November 2023, the father signed a consent form allowing the mother to travel to New Zealand with the child for vacation, departing from Canada on December 13, 2023, and returning to Canada on January 31, 2024.
21On December 5, 2023, the parties attended virtual (Zoom) mediation through Four Counties Family Mediation (Peterborough, Ontario) to address their parenting arrangements.
22The father has made child support payments to the mother through PayPal, beginning in or about December 2023. Between October 2023 and April 2026, he paid a total of $6,739.67.
Part Three – Procedural History
23The mother issued her application in Ontario on March 10, 2025 (the Ontario proceeding). In her application, she seeks orders regarding decision-making responsibility, parenting time, non-removal of the child from Ontario, child support, and incidents of parenting.
24On March 10, 2025, the father electronically filed his Verified Petition to Establish Paternity, Child Custody, Visitation and Support in the Navajo Nation Family Court in Arizona (the Navajo proceeding). Hard copies of the documents were issued by the court on March 20, 2025.
25On April 10, 2025, the mother was personally served in Toronto, Ontario, with the father’s court documents relating to the Navajo proceeding.
26On May 8, 2025, the mother filed a motion to dismiss the Navajo proceeding in the Navajo Nation Family Court. The father filed a response on May 19, 2025.
27On May 15, 2025, the father was personally served with the mother’s Ontario application materials. He was served through a process server. The mother’s affidavit of service was rejected for filing by the court because she had not served the father with other required materials, such as the automatic order and the Mandatory Information Program form. The materials had to be served again.
28The Ontario proceeding was before the first appearance2 court clerk on April 24, 2025. The mother’s counsel advised the clerk of court that the service issue remained outstanding and was considering filing a request for permission to serve by substituted service.
29The Ontario proceeding returned before the first appearance court clerk on June 12, 2025. Service on the father was still outstanding.
30On July 12, 2025, the mother served the father, by way of a process server, with all required materials relating to her Ontario application.
31On September 4, 2025, the Ontario proceeding returned before the first appearance court clerk. The father’s Ontario counsel attended.
32The father filed a Form 10 Answer/Claim in response to the mother’s application dated September 9, 2025. The Answer/Claim was filed with the court on September 11, 2025.
33On November 12, 2025, the first appearance clerk adjourned this matter to February 24, 2026, for a first case conference before me.
34On December 12, 2025 and February 4, 2026, the Navajo Nation Family Court heard the mother’s motion to dismiss the father’s claims in the Navajo Family Court.
35In an undated decision from the Navajo proceeding filed by the father, the Navajo Nation Family Court ruled that it had jurisdiction with respect to the child because it is the child’s status as an enrolled member or one who is eligible for enrollment that matters, not the child’s residence.
36On February 24, 2026, a motion date was scheduled in the Ontario proceeding to address the issue of jurisdiction. Given that neither party sought to have the child removed from Ontario to return to the Navajo Nation, the matter was rescheduled to the earliest available court date of May 29, 2026, to address the jurisdiction issue.
37A motion for immediate temporary custody, time sharing and child support was heard in the Navajo proceeding on April 17, 2026. Both parties filed and served materials. They both testified and were cross-examined regarding the motion. A ruling was still pending as of the date this motion (in the Ontario proceeding) was heard.
Part Four – Joint judicial conference involving all parties involved in both Ontario and Navajo proceedings
38On June 8th, 2026, an endorsement was released in the Ontario proceeding, requesting a joint judicial conference with the Navajo Nation Family Court to discuss the following (before the release of this decision):
a. The jurisdictional issue before the Ontario Court of Justice.
b. The parenting orders sought by each parent in each jurisdiction.
c. Each parent’s parenting plan.
d. The status of the Ontario proceeding, including existing orders.
e. Anticipated next steps in the Ontario proceeding.
f. The status of the Navajo Nation proceeding, including existing orders.
g. Anticipated next steps in the Navajo Nation proceeding.
39The endorsement was faxed to the Family Court of the Navajo Nation on June 9, 2026.
40In advance of the joint judicial conference, the Ontario court issued a separate endorsement directing the parties to provide a summary of the substantive and procedural framework applied by the Family Court of the Navajo Nation in addressing family matters, including its composition. Counsel were given the option of submitting a joint summary.
41Despite follow-up attempts to schedule the joint judicial conference, the Navajo Nation Family Court had not responded as of the date of this decision's release.
Part Five – The parties’ positions
5.1 – The father
42The father’s evidence can be summarized as follows:
a. The child’s habitual residence has always remained the Navajo Reserve. It is the place where the family resided with the child.
b. The Navajo Nation Family Court has specialized knowledge of Navajo traditions, clan relationships, and the cultural factors that are integral to the child’s development and best interests.
c. During cohabitation, the parties and the child travelled for family visits, cultural exchanges and other short-term purposes to Ontario. They never intended to change the child’s residence from the Navajo Reserve.
d. The family also travelled extensively to other places, including Cheney (Washington), Minneapolis, Montana, Oregon and Iraq.
e. Following the parties’ separation, the mother removed the child from the father’s care and brought her to Ontario without providing proper notice or obtaining his consent. She did so under the pretext that she would work toward a parenting plan that would ultimately facilitate the child’s return to the Navajo Nation.
f. The mother told him that she was travelling temporarily, with an intention to eventually have a shared parenting schedule in which the child would return to the Navajo Reserve.
g. He did not agree to have the child reside in Canada permanently.
h. The child left her toys and other items of cultural significance at the Navajo Reserve. The child is connected to the Navajo Nation through her clans.
i. He felt pressured to sign the consent allowing the mother and the maternal grandmother to travel with the child to New Zealand from December 13, 2023, to January 31, 2024
j. He started searching for lawyers around January 2024 in Canada and the U.S.A.
k. Around February 2024, the parties continued to discuss their parenting issues in an attempt to settle. The mother became increasingly unapproachable. She started restricting his parenting time with the child.
l. In early 2024, he started getting concerned that the mother would not return the child to the U.S.A. Settlement discussions became confrontational.
m. In November 2024, he retained counsel in the U.S.A.
n. The mother has actively participated in the Navajo proceeding.
o. The Navajo proceeding is now at an advanced stage, unlike the Ontario proceeding which is still at the case conference stage.
p. Since leaving the Navajo Reserve, the child has missed approximately eight Nightway ceremonies. These are traditional healing ceremonies that typically last ten days and ten nights.
5.2 – The mother
43The mother’s evidence is summarized as follows:
a. The child has remained in Ontario continuously and uninterrupted since October 19, 2023. She has resided in Toronto for two and a half years, representing more than half of her life.
b. The child:
i. Has a community in Toronto, Ontario.
ii. Is surrounded by maternal family members in her current home.
iii. Has formed meaningful relationships and routines in Toronto, Ontario.
c. The father
i. Provided express, written and notarized consent for the child to be relocated to Ontario on October 17, 2023.
ii. Helped the mother and child plan their travel to Ontario.
iii. Signed further consents for the child to travel while residing in Ontario.
iv. Was in regular contact with the mother and the child via telephone, Facetime and text.
v. Transferred support funds for the child to the mother’s Ontario address.
vi. Visited the child in Toronto, Ontario, on five occasions between February 2024 and March 2026.
d. From July 2021 to October 2023, the family resided together for a period of time in Sanders, Arizona, with frequent and extended travel for the father’s artistic engagements and family commitments, and for the mother’s visits to her family in Ontario.
e. During her stay at the Navajo Reserve, the child was never enrolled in any school, daycare or formal program. During her stay at the Navajo Reserve, she never relinquished her Ontario residence, Ontario primary care provider, Ontario community or Canadian benefits.
f. When she returned to Ontario with the child, both parties understood it was permanent. The parties agreed to work out a co-parenting arrangement with Ontario as the child’s home.
g. The father signed a one-way consent to travel to Ontario. The mother provided a U-Hall one-way travel contract signed the same day as the father’s travel consent.
h. The father’s consent and the U-hall contract do not point towards temporary travel.
i. From October 2023 to April 2026, the father made support payments totalling approximately $6,737.67.
j. She has been the child’s sole financial provider in Ontario, paying for housing, food, clothing, medical care, school enrollment, and child care.
k. Between February 2024 and March 2026, the father visited the child in Toronto on five occasions, totalling approximately twenty-one days of in-person parenting time over five months. During that period, he never asserted that the child be removed from Ontario.
l. Even though her motion to dismiss the Navajo proceeding was dismissed, she has continued to contest jurisdiction throughout the Navajo proceeding.
m. She would support a generous parenting schedule that supports the child’s relationship with her father and her Navajo heritage, including facilitating cultural visits to the Navajo Nation when the child is older.
Part Five – Legal Considerations
44Section 19 of the Act provides as follows
The purposes of this Part are,
(a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;
(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
(c) to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and
(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child. 2020, c. 25, Sched. 1, s. 2.
45Section 22 of the Act provides as follows:
Jurisdiction
22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) the child is not habitually resident in Ontario, but the court is satisfied that,
(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. 2020, c. 25, Sched. 1, s. 6.
Habitual residence
(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
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. 2020, c. 25, Sched. 1, s. 6.
46In Dunmore v. Mehralian, 2025 SCC 20, the court found that Section 22 of the Act creates a statutory pathway for determining habitual residence and jurisdiction in non-Hague cases. It is what is applied, not the test in Balev. However, it indicated that many of the principles set out in Balev apply to where a child resides, as set out in clause 22 (1) (a). The Act does not define resides. The court set out the following principles:
The question under s. 22(1)(a) is not where the child resided at the commencement of the application, but where they are “habitually resident”, appreciated in reference to where the child was residing at the time prescribed by s. 22(2) and (3).
The guiding principle in determining if the child was residing in a place is whether the child was at home there, not whether the parents had a settled intention to reside in the place. The meaning of “reside” in the specific context at issue must be understood in reference to the general purposes of Part III, which include to ensure that applications to courts concerning children will be dealt with on the basis of their best interests, to avoid jurisdictional overlap, to discourage the abduction of children as an alternative to due process and to provide for effective enforcement of orders concerning children.
The notion of home is a reminder that a court is not in search of legal formalities, but must remain squarely focused on the child’s life and circumstances when asking where they reside. Home is simply living in a place as opposed to merely visiting it.
A shared intention approach wrongly takes the focus away from objective factors, such as where the child lived, and gives undue priority to the parents’ subjective views. It is a more open‑textured approach that best fulfills the goals of prompt return and best protects children. To the extent that different considerations apply in cases outside the scope of the Hague Convention, they only further militate against a shared parental intention approach. Canadian courts cannot assume that jurisdictions not party to the Hague Convention will be guided by the best interests of the child, nor that they will demonstrate the reciprocity necessary to orderly interjurisdictional decision-making with respect to children.
Courts asking where the child is at home should look to “all relevant links and circumstances” (Zafar, at para. 74, citing Balev, at paras. 43-45). The court emphasized all relevant circumstances, because the mere fact that the list of factors is not closed does not mean that every imaginable factor will be relevant. The court must consider all relevant circumstances to make this determination.
The analysis should focus on the factual connections between the child and the jurisdiction in question, as well as the circumstances surrounding any movement to and from the jurisdiction. This may include things like the use of social services in the jurisdiction, linguistic, cultural, educational and social ties to the jurisdiction, the presence of family in the jurisdiction, and the duration of and reasons for their being in the jurisdiction. In taking these various factors into account, judges should be aware of the social context that shapes how children live and where they are at home, including the practical realities for migrant children, gender dynamics and the presence of family violence.
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 court should consider the children’s views and perspectives. As children become older, their own ties to the jurisdiction take on greater importance.
Physical presence in a jurisdiction at a point in time is neither necessary nor sufficient to reside in that jurisdiction at that time.
A child can reside somewhere even if no one intends they live there permanently.
What the concept of residence excludes are inherently transient situations, like vacationing (Aslanimehr, at paras. 36 and 39), appreciated in light of the full context of each individual case. The determination of whether a child is habitually resident “is not a pure mathematical calculation” of the number of days they resided in a place (G.M. v. J.G., 2023 NBKB 57, 88 R.F.L. (8th) 377, at para. 84).
For very young children who may not have clear objective ties to a place, the ties of those who are taking care of them are likely to weigh more heavily in the analysis and,
A child may reside in more than one jurisdiction at any given time. See: Jerome v. Steeves, 2006 CanLII 36605 (ON CA), 30 R.F.L. (6th) 256 (Ont. C.A.); Riley v. Wildhaber, 2011 ONSC 3456, 2011 CarswellOnt 6587 (Ont. Div. Ct.). This “reflects the reality of children who share their time with both parents in different jurisdictions”.
The determination of where a child resided is a factual and contextual exercise, but it is not, and must not be allowed to become, a complex and costly one. International child abduction cases must be dealt with promptly and all participants in the family justice system must do more to expedite the resolution of jurisdictional disputes concerning children. Judges, litigants and their counsel must not allow disputes about where a child resided to become needlessly complex and stimulate the production of an undue volume of documentary evidence.
Part Six – Analysis
6.1 – Was the child habitually resident in Ontario at the commencement of the Ontario proceeding?
47The mother’s application in Ontario was issued on March 10, 2025.
48At the time the application was issued, the parents were separated. The court must determine whether the child was residing in Ontario at the commencement of the Ontario proceeding with the consent, implied consent, or acquiescence of the father, or pursuant to a court order.
49The court finds that the evidence supports the mother’s position that the child was residing in Ontario at the commencement of the Ontario proceeding with the consent or implied consent of the father, for the following reasons:
a. The father never expressly requested that the mother return the child to the Navajo Nation.
b. On October 17, 2023, the father signed a notarized consent permitting the mother to travel to Canada with the child. The consent did not specify any return date for the child from Canada to Arizona.
c. The court does not accept the father’s assertion that his consent was limited to the mother’s temporary travel to Ontario, as opposed to residing there. There is a marked distinction between the consent he provided for travel to Canada and the subsequent consent he signed on November 20, 2023, permitting travel to New Mexico with the child. The consent for travel to Canada authorized one-way travel only, whereas the New Mexico consent, executed approximately four weeks later, included detailed itinerary information, including specified return dates.
d. The consent for the New Mexico trip specified that the mother and the child “will be returning to Canada on December 4th…”. This language clearly indicates that the travel was intended to be temporary. Moreover, by expressly stating that the child would return to Canada with the mother, the father implicitly acknowledged that the child’s residence at that time was in Ontario.
e. In November 2023, the father provided the mother with a notarized consent, allowing her to travel to New Zealand with the child, departing from Canada on December 13, 2023, and returning to Canada on January 31, 2024.
f. The father submits that he did not acquiesce to Canada becoming the child’s habitual residence, but merely sought to ensure that the child was well rested before returning to the Navajo Nation. This position is undermined by his subsequent consent to the child undertaking an extended trip to New Zealand, with a return to Canada.
g. The father’s communications to the mother following her arrival in Canada with the child contradict the position he now takes regarding the child’s residence. On November 20, 2023, he sent the following message to the mother:
As you get settle(sic) in the Toronto area and build your business. I would be more than happy for E to come spend time with me for a while so you can focus on that.
h. The message set out above indicates that the father expected the mother to settle in Toronto and establish a new life there. He asked her to agree to his spending time with the child “for a while.” The message further suggests that any travel by the child to the Navajo Nation at that time was contemplated as parenting time, rather than as a return of the child.
i. The language used by the father in his motion materials clearly indicates that his primary concern was securing parenting time with the child, rather than effecting the child’s return to the Navajo Nation. He wrote the following in his affidavit materials:
i. I have asked again and again for E to visit me on the reserve, and I am met with silence or refusal. [emphasis added]
ii. On December 9, 2024, I asked the Applicant if I could have E for Christmas.
j. The father discussed his visits with the mother. Between February 2024 and March 2026, he visited the child in Ontario on five occasions.
k. The father did not commence any court proceedings in either jurisdiction for a period of seventeen months following the child’s move to Ontario with the mother.
l. The father is not seeking a return of the child to the Navajo First Nation.
50The evidence is overwhelming that the child’s home was in Ontario at the commencement of the Ontario proceedings, and the child was not merely visiting. This is further supported by the following:
a. The mother has extended family members in Ontario, and the child is connected to the extended family members.
b. The child is registered with the Ontario Health Insurance Plan (OHIP).
c. The child is registered with an Ontario family physician.
d. The child was about two-and-a-half years old when she moved to Ontario with her mother. She has remained in Ontario for seventeen months following her move.
51The court finds that the child is habitually resident in Ontario.
6.2 – Should this court decline to exercise jurisdiction pursuant to s.25 of the Act?
52Section 25 of the Act provides as follows:
Declining jurisdiction
25 A court having jurisdiction under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child may decline to exercise its jurisdiction if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside Ontario. 2020, c. 25, Sched. 1, s. 6.
53In determining whether to decline jurisdiction, the court in Kalra v. Bhatia, 2024 ONSC 1443, preferred the balance of convenience test, informed by factors that allow the court to conclude which forum is in a better position to dispose of the parenting issues. These factors include consideration of the place where the child has a closer connection. In paragraph 83 of the decision, the court listed some of the factors, as follows:
a. The locations of parties and witnesses
b. The place of the child’s doctor, dentist, school, and extra-curricular activities
c. The child’s school attendance record
d. The residence of the child’s friends, family, and caregivers
e. The existence of a court order or court filings
54This case is complicated by the following factors, which are also cited by the father in his request to decline jurisdiction:
a. The Family Court of the Navajo Nation has assumed jurisdiction.
b. The mother has been actively participating in the Navajo proceeding. She has counsel in that proceeding. Conversely, the father has been actively participating in the Ontario proceeding. He retained counsel, and seeks substantive claims in his pleadings.
c. The Navajo proceeding appears to be at an advanced stage in terms of process. The anticipated next step in the Navajo proceeding is the scheduling of a trial date. The Ontario proceeding is still at the case conference stage.
55The Supreme of Canada was clear in Dunmore that while attornment could be a factor when addressing the issue of jurisdiction under Part III of the Act, it is not determinative of the issue (see paragraph 92). It stated that:
91… Part III of the Act mandates an approach that serves the best interests of children (see s. 19(a); F. v. N., at paras. 60-62). It would be antithetical to the best interests of the child to conclude that the carefully crafted grounds for jurisdiction in this Part can be implicitly ousted by foreign attornment. Children have no control over where their parents litigate (see E. (H.), at paras. 82-83) and should not lose protection to which they are entitled because of litigation choices made by the adults in their life.
56The father further argues that the child’s needs are best understood within the Navajo Nation community, and Ontario courts cannot take an in-depth analysis and understanding of the Navajo Nation traditions and values. The court understands that the Family Court of the Navajo Nation may be better positioned in terms of an understanding of the child’s traditions and cultural connection in relation to her Navajo identity. However, that does not necessarily mean that an Ontario court is not able to address cultural considerations when assessing the child’s best interests, for the following reasons:
a. The Act, at subsections 24(1) and 24(2), requires that parenting orders be made based on the best interests of the child:
(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Subsection 24(3) of the Act sets out a non-exhaustive list of factors related to the circumstances of the child, which include, at clause 24(3)(f), “the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage”.
b. The mother is a member of the Shawanaga First Nation in Ontario. In assessing the child’s best interests, an Ontario court is required to consider the child’s cultural connection to both the Navajo Nation and the Shawanaga First Nation.
c. In C.N.L. v. G.A.M., 2023 ONSC 3397, the court observed that the Federal Legislation [An Act respecting First Nations, Inuit and Métis children, youth and families, 2019] has a more comprehensive definition of what is in an indigenous child’s best interests than set out in the Act. The decision further states that the court also should consider the United Nations Convention on the Rights of the Child and the United Nations Declaration on Rights of Indigenous Peoples, both being incorporated into legislation.
57The court finds that it is appropriate that jurisdiction remain in Ontario, for the following reasons:
a. Substantial evidence concerning the child’s best interests is in Ontario.
b. The child resides in Ontario.
c. The child has remained in Ontario for two years and eight months.
d. Neither parent seeks to remove the child from Ontario.
e. The child has been registered with a family physician (Dr. Suzanne Shoush) in Ontario since birth.
f. The child is enrolled in junior kindergarten at a school in Toronto, Ontario. A progress report card dated December 17, 2025, shows that she had three absences and eight lates during the first semester. The report card has the following positive comments. She is:
i. Continuing to strengthen her sense of belonging within the classroom community as she learns to participate in shared routines and collaborative learning experiences.
ii. Building independence and confidence as she navigates daily classroom routines and transitions.
iii. Demonstrates increasing engagement with literacy through play, inquiry, and artistic expression.
iv. Participates enthusiastically in daily physical activities.
v. Demonstrated steady growth in her early French learning during the first semester.
vi. There is evidence suggesting that she remains connected to her Indigenous identity. Her school report card has the following comment:
During our inquiry into family, celebrations, and traditions, she demonstrated meaningful cultural understanding by sharing the significance of fire during powwow and explaining the meaning of her jingle dress. She continues to enrich our collective learning by teaching peers about her Indigenous traditions, including traditional dance, smudging, and relationships to the land, strengthening our shared understanding of community and identity.
a. On February 24, 2026, a temporary parenting order was made in the Ontario proceeding, on consent of the parties, which allowed the father to have unsupervised daytime parenting time (from 10:15 a.m. until 8:00 p.m. each day) in Ontario for three consecutive days between March 7 and 15, 2026.
b. The mother has facilitated the father’s in-person parenting time in Ontario. As of the date of this motion, he had travelled five times to Ontario to visit the child in Ontario.
Part Seven – The next steps
58The court recognizes the practical challenges arising from parallel proceedings in different jurisdictions concerning the child. Subsection 19(b) of the Act is clear that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided in appropriate circumstances.
59In the court’s view, a joint judicial conference involving the parties, their counsel, and the judges in both jurisdictions would help identify a practical and coordinated solution to the challenges described above.
60If a joint judicial conference is not feasible, the parties may consider convening an all-party meeting involving both parties and their respective counsel across the jurisdictions. Other potential options include:
a. Voluntary withdrawal of pleadings in one of the two jurisdictions.
b. Obtaining consent orders in one jurisdiction, coupled with an agreement to secure corresponding mirror orders in the other jurisdiction. See Justice S.B. Sherr’s decision in Brown v. Pulley 2015 ONCJ 186
c. Agreeing to resolve certain limited issues in one jurisdiction, with the remaining issues to be determined in the other jurisdiction.
d. Pursuing alternative dispute resolution mechanisms. The parties previously attempted mediation before commencing their applications.
61The court will direct the parties to forward a copy of this decision to their counsel in the Navajo proceeding.
Part Eight – Conclusion
62An order to go as follows:
a. Ontario has the jurisdiction to make a parenting order with respect to the child.
b. The father’s request regarding jurisdiction is dismissed.
c. The parties shall, within five business days of this order, provide their counsel in the Navajo proceeding with a copy of this decision.
63The mother was the successful party. If she seeks costs of this motion, she shall serve and file written costs submissions by July 2, 2026. The father will then have until July 17, 2026, to serve and file his responding costs submissions. The submissions shall not exceed five pages, not including any bill of costs or offer to settle. Written submissions shall be typed or written legibly, with double spaces between the lines and characters of at least 12-point size. The costs submissions shall be submitted to the court through the trial coordinator’s office.
64The court thanks counsel for their thorough and well-prepared materials and for their able submissions.
Released: June 17, 2026
Signed: Justice Wiri Kapurura
Footnotes
- The parties disagree on whether the consent was intended for temporary travel or relocation to Ontario.
- Subrule 40(4 of the Family Law Rules describes the role of a first appearance court clerk, which includes ensuring all relevant documents have been served and filed before the matter is referred to a case conference before a judge.