Rodney Brian Cross

The appellant father appealed an interlocutory order finding that the Ontario Superior Court had jurisdiction to hear the respondent mother's application for custody and support under the Children's Law Reform Act.

The parents had a joint custody arrangement where the children alternated weeks between the mother's home in Ontario and the father's home in Quebec.

The Divisional Court found the motions judge erred by failing to determine the children's habitual residence.

The Court held that under s. 22(2)(b) of the CLRA, a child can have two concurrent habitual residences in appropriate circumstances.

While the Ontario court had jurisdiction, the Court declined to exercise it under ss. 25 and 42(2), finding that Quebec was the more appropriate forum given the parties' extensive history of litigating the matter there.