SUPREME COURT OF CANADA

Appeal Heard and Judgment Rendered: December 9, 2024 Reasons for Judgment: June 20, 2025 Docket: 41108

Between: Michael Paul Dunmore Appellant and Raha Mehralian Respondent - and - Barbra Schlifer Commemorative Clinic, Office of the Children’s Lawyer, Defence for Children International – Canada, Centre for Refugee Children, South Asian Legal Clinic of Ontario, South Asian Legal Clinic of British Columbia and South Asian Bar Association Interveners Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

Reasons for Judgment: (paras. 1 to 96)

Martin J. (Wagner C.J. and Karakatsanis, Rowe, Kasirer, Jamal, O’Bonsawin and Moreau JJ. concurring)

Dissenting Reasons: (paras. 97 to 184)

Côté J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Michael Paul Dunmore Appellant

v.

Raha Mehralian Respondent

and

Barbra Schlifer Commemorative Clinic,

Office of the Children’s Lawyer,

Defence for Children International – Canada,

Centre for Refugee Children,

South Asian Legal Clinic of Ontario,

South Asian Legal Clinic of British Columbia and

South Asian Bar Association Interveners

Indexed as: Dunmore v. Mehralian

2025 SCC 20

File No.: 41108.

Hearing and judgment: December 9, 2024.

Reasons delivered: June 20, 2025.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

on appeal from the court of appeal for ontario

Family law — Custody — Jurisdiction to make parenting order — Habitual residence — Father challenging jurisdiction of Ontario courts to make parenting order requested by mother and seeking return of child to Oman — Ontario courts taking jurisdiction on basis that child was habitually resident in Ontario at time of application by mother for parenting order — Whether Ontario courts properly took jurisdiction — Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 22 .

The mother, an Iranian citizen and permanent resident of Canada, and the father, a Canadian citizen originally from Ontario, met in Malaysia in 2014 and were married in Japan in 2015. They then lived in various jurisdictions together, generally moving for reasons related to the father’s employment. They lived together in Oman from April 2018 until March 2020, when they travelled to Ontario. Although they had originally planned to return to Oman in April 2020, they remained in Ontario longer because of the COVID‑19 pandemic. Their child was born in Ontario in December 2020. In January 2021, the mother, father and child returned to Oman, but they all came back to Ontario in April 2021.

In May 2021, the mother and father separated. The father returned to Oman, while the mother and the child have remained in Ontario. The father started a proceeding in Oman in June 2021, seeking a divorce and custody of the child. The mother commenced family law proceedings in the Ontario Superior Court one day after the father commenced proceedings in Oman. The father brought a motion in the Ontario Superior Court challenging the jurisdiction of Ontario courts to determine the parenting issues and seeking the child’s return to his care in Oman. The motion judge dismissed the father’s motion, concluding that Ontario courts had jurisdiction because the child was habitually resident in Ontario for the purposes of s. 22(1) (a) of Ontario’s Children’s Law Reform Act (“ CLRA ”). The Court of Appeal agreed and dismissed the father’s appeal.

Held (Côté J. dissenting): The appeal should be dismissed.

Per Wagner C.J. and Karakatsanis, Rowe, Martin , Kasirer, Jamal, O’Bonsawin and Moreau JJ.: For the purpose of determining if Ontario courts have jurisdiction to hear a proceeding brought under the CLRA concerning a child who is not subject to the Hague Convention , the definition of “habitually resident” in s. 22(2) of the CLRA requires the court to look to where the child was residing at a prescribed time. 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. In the instant case, Ontario courts properly took jurisdiction. The motion judge considered all the relevant circumstances and concluded that the family was residing in Ontario when the child last lived with both parents. There is no basis to interfere with that finding.

A court may only make parenting and contact orders under Part III of the CLRA if a ground establishing its jurisdiction has been made out. The ground for jurisdiction set out in s. 22(1) (a) of the CLRA is based on habitual residence. The CLRA expressly defines what it means for a child to be “habitually resident” in s. 22(2) and (3) . Section 22(2) provides that a child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred: (1) the child resided with both parents; (2) the child resided with one parent under agreement, consent, acquiescence or court order; or (3) the child resided with a person other than a parent on a permanent basis for a significant period of time. Section 22(3) adds that habitual residence cannot be altered by the removal or withholding of a child, unless it is done with the consent of all persons having decision-making responsibility with respect to the child or there has been acquiescence or undue delay in commencing due process. The combined effect of s. 22(2) and (3) is that habitual residence is determined in reference to the most recent time at which both of two conditions were met (the “prescribed time”): (1) the child “resided” in one of the three circumstances enumerated in s. 22(2) ; and (2) the child was not removed or withheld without the consent, acquiescence or undue delay of all persons having decision-making responsibility within the meaning of s. 22(3) . A court faced with the question of whether the child was habitually resident in Ontario must, then, simply ask whether the child “resided” there at the prescribed time.

The CLRA does not define what it means to “reside”. The ordinary meaning of “to reside” is simply to live or be at home in a place, in whatever form that takes. 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 hybrid definition of “habitually resident” discussed in Office of the Children’s Lawyer v. Balev , 2018 SCC 16 , [2018] 1 S.C.R. 398, in relation to the Hague Convention does not apply directly to s. 22 of the CLRA ; however, similar considerations may still inform the analysis, as the purposes of the Hague Convention are similar to those of Part III.

An approach to the meaning of “reside” that focuses on shared parental intention must be rejected. There is nothing in the text of s. 22 that indicates the ordinary meaning of “reside” is displaced by a concept focused around shared parental intention. Attempts to overlay the fact‑specific concept of habitual residence with complex legal constructs like parental intention have failed. 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.

The proper interpretation of the word “reside”, grounded in the text, context and purpose of Part III, is that a child resides where they are at home. 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. General principles relevant to the interpretation of where a child “resides” for the purposes of s. 22 of the CLRA include: (1) physical presence in a jurisdiction at a point in time is neither necessary nor sufficient to reside in that jurisdiction at that time; (2) permanence is not necessary for residence; (3) 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 (4) a child may reside in more than one jurisdiction at any given time.

Courts asking where the child is at home should look to all relevant links and circumstances. 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.

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.

Per Côté J. (dissenting): The appeal should be allowed and the matter remitted to the motion judge to determine whether to return the child to Oman. The parental intention approach must play a central role in determining habitual residence under s. 22(2) of the CLRA . When this approach is applied to the evidence in the record in the instant case, the natural result is that the child’s habitual residence was in Oman, not Ontario. Ontario therefore does not have jurisdiction in this matter.

The question at issue is fundamentally one of statutory interpretation — it is not what the best approach to determining habitual residence should be in the eyes of the Court. Though the majority purports to reject the hybrid approach to determining habitual residence that the Court adopted in Balev for Hague Convention cases, it proceeds to outline a test that seems almost identical to that hybrid approach, and disregard explicit language in the CLRA stating that a child’s habitual residence cannot be modified unilaterally by one parent. This cannot be the proper approach for interpreting the concept of habitual residence under the CLRA . The only approach supported by the text, context, and purpose of s. 22(2) of the CLRA is the parental intention approach. It is the only approach that aligns with the legislature’s wording of the provision and that provides certainty and predictability in a part of a statute that is aimed, among other things, at preventing the wrongful removal of children.

The main points that emerge from a consideration of the text, context, and purpose of s. 22 of the CLRA are that the text of s. 22(2) and (3) clearly captures parental intention, and habitual residence must involve more than just physical presence in a particular location. The purpose of s. 22(2) is to determine a court’s jurisdiction, as part of a framework of other provisions that collectively advance the best interests of children and prevent their abduction. The parental intention approach best fulfills these objectives by preventing a child’s habitual residence from being determined where the child is taken to a country by one parent without the consent or acquiescence of the other. Although one of the overall purposes of Part III of the CLRA requires courts to consider the best interests of children, this does not mean that each individual subsection or part of the analysis must include a direct consideration of best interests. Other provisions in Part III expressly perform that role. There is no need to turn the assessment under s. 22(1)(a) into a far more complicated one than the alternative under s. 22(1)(b).

The hybrid approach adopted in the Hague Convention context cannot be transposed to s. 22(2) . Habitual residence is defined in the CLRA , unlike in the Hague Convention . Moreover, both the hybrid approach from Balev and the majority’s approach permit the actions of one parent to unilaterally change the habitual residence of a child. This possibility is expressly rejected by s. 22(3). The only appropriate approach left that respects the wording of the statute is the parental intention approach.

In the instant case, the motion judge committed an extricable legal error in determining that the child was habitually resident in Ontario. This is because she thought that finding a settled intention to reside in a particular place was not required in order to determine a child’s habitual residence. As a result of this, she did not view the facts through the proper lens. The Court thus owes no deference to her conclusion. When the habitual residence analysis is conducted afresh, applying the settled parental intention approach, under s. 22(2) , the child was habitually resident in Oman, not Ontario. The last place there was a shared parental intention to reside was Oman, not Ontario.

Furthermore, the requirements in s. 22(1) (b) of the CLRA , which provides an alternate basis for a court to exercise jurisdiction in the event that a child’s habitual residence is not in Ontario, are not met. All of the requirements in s. 22(1) (b)(i) to (vi) must be met for the court to assume jurisdiction. Two of these requirements are not met in the instant case. Section 22(1) (b)(iii) requires that no application respecting decision‑making responsibility, parenting time or contact with respect to the child be pending before an extra‑provincial tribunal in another place where the child is habitually resident. As the child’s habitual residence was in Oman, this criterion will not be satisfied if any such application was pending in Oman at the time that the Superior Court proceedings were initiated. The proceedings in Oman were pending at the time the mother initiated her proceedings in Ontario, which was the only relevant time frame that should be considered. As well, the last criterion of s. 22(1) (b) is also not satisfied. Section 22(1) (b)(vi) requires a court to find that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. It is difficult to conclude that the balance of convenience can favour exercising jurisdiction in Ontario where the province is not the child’s place of habitual residence and where the mother has also fully attorned to the jurisdiction of a foreign court for custody‑related proceedings. This is not a case where habitual residence is established both in Ontario and in another jurisdiction. The child’s habitual residence was in Oman.

Cases Cited

By Martin J.

Considered: Office of the Children’s Lawyer v. Balev , 2018 SCC 16 , [2018] 1 S.C.R. 398; F. v. N. , 2022 SCC 51 ; referred to: D.G. v. A.F. , 2014 ONCA 436 ; Brooks v. Brooks (1998), 1998 CanLII 7142 (ON CA) , 41 O.R. (3d) 191; Ojeikere v. Ojeikere , 2018 ONCA 372 , 140 O.R. (3d) 561; Young v. Young , 1993 CanLII 34 (SCC) , [1993] 4 S.C.R. 3; Dovigi v. Razi , 2012 ONCA 361 , 110 O.R. (3d) 593; E. (H.) v. M. (M.) , 2015 ONCA 813 , 393 D.L.R. (4th) 267; Geliedan v. Rawdah , 2020 ONCA 254 , 446 D.L.R. (4th) 440; Murray v. Ceruti , 2014 ONCA 679 , 50 R.F.L. (7th) 298; Los v. Ross , 2024 ONCA 122 , 10 R.F.L. (9th) 51; Droit de la famille — 131294 , 2013 QCCA 883 , [2013] R.J.Q. 849; Rizzo & Rizzo Shoes Ltd. (Re) , 1998 CanLII 837 (SCC) , [1998] 1 S.C.R. 27; R. v. Wolfe , 2024 SCC 34 ; Telus Communications Inc. v. Federation of Canadian Municipalities , 2025 SCC 15 ; Malpani v. Malpani , 2022 ONSC 4123 ; Thomson v. Minister of National Revenue , 1946 CanLII 1 (SCC) , [1946] S.C.R. 209; Lor v. Lor (1978), 1978 CanLII 3124 (NS CA) , 5 R.F.L. (2d) 138; Adderson v. Adderson (1987), 1987 ABCA 52 (CanLII) , 36 D.L.R. (4th) 631; Attorney General of Canada v. Canard , 1975 CanLII 137 (SCC) , [1976] 1 S.C.R. 170; R. v. Clement (1914), 1914 CanLII 667 (SCC) , 6 W.W.R. 414; Lanston Monotype Machine Co. v. Northern Publishing Co. (1922), 1922 CanLII 59 (SCC) , 63 S.C.R. 482; Re Kelly Infants , 1970 CanLII 424 (ON SC) , [1970] 2 O.R. 608; Kong v. Song , 2019 BCCA 84 , 21 B.C.L.R. (6th) 284, aff’g 2018 BCSC 1691 ; Pengelly v. Lynas , 2024 ONSC 6269 ; Zafar v. Azeem , 2024 ONCA 15 , 97 R.F.L. (8th) 3; Korenic v. DePotter , 2022 ONSC 3954 , 77 R.F.L. (8th) 207; Logan v. Logan , 2022 ONSC 4927 , 82 R.F.L. (8th) 193; Barakat v. Andraos , 2023 ONSC 582 , 85 R.F.L. (8th) 189; In re LC (Children) , [2014] UKSC 1, [2014] A.C. 1038 ; Monasky v. Taglieri , 589 U.S. 68 (2020); Aslanimehr v. Hashemi , 2022 BCCA 248 , 76 R.F.L. (8th) 269; Sheidaei-Gandovani v. Makramati , 2016 ONCJ 326 ; Johnson v. Athimootil (2007), 2007 CanLII 41434 (ON SC) , 49 R.F.L. (6th) 106; H. (A.) v. H. (F.S.) , 2013 ONSC 1308 , 28 R.F.L. (7th) 163, aff’d 2013 ONCA 227 ; Sanders v. Aerts , 2014 ONCJ 20 , 42 R.F.L. (7th) 477; Chan v. Chow , 2001 BCCA 276 , 199 D.L.R. (4th) 478; G.M. v. J.G. , 2023 NBKB 57 , 88 R.F.L. (8th) 377; Moussa v. Sundhu , 2018 ONCJ 284 , 11 R.F.L. (8th) 497; Cartwright v. Hinds (1883), 3 O.R. 384 ; Brouillard v. Racine (2002), 2002 CanLII 2648 (ON SC) , 33 R.F.L. (5th) 48; Riley v. Wildhaber , 2011 ONSC 3456 , 336 D.L.R. (4th) 604; A v. A , [2013] UKSC 60, [2014] A.C. 1 ; Mercredi v. Chaffe , C‑497/10 PPU, [2010] E.C.R. I‑14358; Khan v. Raza , 2024 ONCJ 382 ; X.L. v. C.B. , 2024 ONSC 3895 ; Kalra v. Bhatia , 2024 ONSC 1443 ; Jarrar v. Al-Khalili , 2024 ONSC 7134 , 10 R.F.L. (9th) 271; Osaloni v. Osaloni , 2023 ABCA 116 ; Pollastro v. Pollastro (1999), 1999 CanLII 3702 (ON CA) , 43 O.R. (3d) 485; Ogunboye v. Faoye , 2023 ONCJ 46 , 84 R.F.L. (8th) 99; Kinsella v. Mills , 2020 ONSC 4785 , 44 R.F.L. (8th) 1; Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87; R. v. Haevischer , 2023 SCC 11 ; K.F. v. J.F. , 2022 NLCA 33 , 7 C.A.N.L.R. 609; Rifkin v. Peled-Rifkin , 2017 NBCA 3 , 89 R.F.L. (7th) 194; Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235; Ontario (Attorney General) v. Restoule , 2024 SCC 27 ; Barendregt v. Grebliunas , 2022 SCC 22 , [2022] 1 S.C.R. 517; Beals v. Saldanha , 2003 SCC 72 , [2003] 3 S.C.R. 416.

By Côté J. (dissenting)

Office of the Children’s Lawyer v. Balev , 2018 SCC 16 , [2018] 1 S.C.R. 398; Rizzo & Rizzo Shoes Ltd. (Re) , 1998 CanLII 837 (SCC) , [1998] 1 S.C.R. 27; In re LC (Children) , [2014] UKSC 1, [2014] A.C. 1038 ; Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559; Kong v. Song , 2019 BCCA 84 , 21 B.C.L.R. (6th) 284; Zafar v. Azeem , 2024 ONCA 15 , 97 R.F.L. (8th) 3; Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235; Ojeikere v. Ojeikere , 2018 ONCA 372 , 140 O.R. (3d) 561; E. (H.) v. M. (M.) , 2015 ONCA 813 , 393 D.L.R. (4th) 267; Nichols v. Nichols , 1995 CanLII 6241 ; Aldush v. Alani , 2022 ONSC 1536 , 74 R.F.L. (8th) 113; Solem v. Solem , 2013 ONSC 1097 .

Statutes and Regulations Cited

Children’s Law Act , C.S.Nu., c. C‑70, s. 25(2).

Children’s Law Act , R.S.N.L. 1990, c. C‑13, s. 28(2).

Children’s Law Act , R.S.Y. 2002, c. 31, s. 37(2).

Children’s Law Act , S.N.W.T. 1997, c. 14, s. 25(2).

Children’s Law Act , S.P.E.I. 2020, c. 59, s. 35(3).

Children’s Law Act, 2020 , S.S. 2020, c. 2, s. 6.

Children’s Law Reform Act , R.S.O. 1990, c. C.12, Part III, ss. 18, 19, 21, 22, 23, 25, 40, 41, 64(1), 69.

Civil Code of Québec , art. 3142.

Domicile and Habitual Residence Act , C.C.S.M., c. D96, s. 9(2).

Family Law Act , S.B.C. 2011, c. 25, ss. 72, 74 .

Family Law Act , S.N.B. 2020, c. 23, s. 68(2).

Family Law Reform Act , R.S.O. 1980, c. 152.

Family Law Rules , O. Reg. 114/99, r. 37.2(3).

Minors Act , R.S.O. 1980, c. 292.

Treaties and Other International Instruments

Convention on the Civil Aspects of International Child Abduction , Can. T.S. 1983 No. 35, Articles 1, 3.

Authors Cited

Bala, Nicholas. “ O.C.L. v. Balev : Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of the CLRA” (2019), 38 C.F.L.Q. 301.

Cambridge Dictionary (online: https://dictionary.cambridge.org/), “reside”.

Côté, Pierre-André, and Mathieu Devinat. Interprétation des lois , 5th ed. Montréal: Thémis, 2021.

McCormack, Nancy. Pocket Dictionary of Canadian Law , 6th ed. Toronto: Thomson Reuters, 2023, “reside”.

Morley, Jeremy. “International child abduction and non-Hague Convention countries”, in Marilyn Freeman and Nicola Taylor, eds., Research Handbook on International Child Abduction: The 1980 Hague Convention . Northampton, Mass.: Edward Elgar, 2023, 244.

Mosher, Janet, et al. “Submission to Justice Canada on the Criminalization of Coercive Control”, in Osgoode Hall Law School Legal Studies Research Paper Series, Research Paper No. 4619067, October 30, 2023.

O’Connell, Sheilagh, Anita Volikis and Lynn Kirwin. The 2012-2013 Annotated Ontario Children’s Law Reform Act . Toronto: Carswell, 2012.

Oxford English Dictionary (online: https://www.oed.com/), “reside”.

Petit Robert: dictionnaire alphabétique et analogique de la langue française , new ed. Paris: Le Robert, 2025, “ résider ”.

Pitel, Stephen G. A. Conflict of Laws , 3rd ed. Toronto: University of Toronto Press, 2025.

Shipley, Allan Q. “Custody Law Reform in Ontario: The Children’s Law Reform Act ”, in Barbara Landau, ed., Children’s Rights in the Practice of Family Law . Toronto: Carswell, 1986, 153.

Tétrault, Michel. Droit de la famille , vol. 4, La procédure, la preuve et la déontologie , 4th ed. Cowansville, Que.: Yvon Blais, 2010.

Tolmie, Julia, Rachel Smith and Denise Wilson. “Understanding Intimate Partner Violence: Why Coercive Control Requires a Social and Systemic Entrapment Framework” (2024), 30 Violence Against Women 54.

Wilton, Ann, Gary S. Joseph and Tara Train. Parenting Law and Practice in Canada . Toronto: Thomson Reuters, 1992 (loose-leaf updated March 2025, release 1).

APPEAL from a judgment of the Ontario Court of Appeal (Trotter, Sossin and Monahan JJ.A.), 2023 ONCA 806 , 94 R.F.L. (8th) 255, [2023] O.J. No. 5446 (Lexis), 2023 CarswellOnt 18892 (WL), affirming a decision of Brownstone J., 2023 ONSC 2616 , [2023] O.J. No. 2022 (Lexis), 2023 CarswellOnt 6779 (WL). Appeal dismissed, Côté J. dissenting.

Michael J. Stangarone , Meghann P. Melito and Tiffany (Shi Han) Guo , for the appellant.

Anthony Macri , Sam Misheal and Geoff Carpenter , for the respondent.

Deepa Mattoo , Tamar Witelson and Archana Medhekar , for the intervener Barbra Schlifer Commemorative Clinic.

Caterina E. Tempesta , Kenneth Atkinson and Sheena Scott , for the intervener Office of the Children’s Lawyer.

Fadwa K. Yehia and Fareen Jamal , for the interveners Defence for Children International – Canada and Centre for Refugee Children.

Neha Chugh and Maneesha Mehra , for the interveners South Asian Legal Clinic of Ontario, South Asian Legal Clinic of British Columbia and South Asian Bar Association.

The reasons for judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. were delivered by

Martin J. —

I. Overview

1## Overview

This appeal is about what it means for a child to be habitually resident in a place for the purpose of determining if a court has jurisdiction to hear a proceeding concerning that child under the Children’s Law Reform Act , R.S.O. 1990, c. C.12 (“Act”). It invites this Court to consider this question for children who are not subject to the Convention on the Civil Aspects of International Child Abduction , Can. T.S. 1983 No. 35 (“ Hague Convention ”).

2The parties were married in Japan and travelled together to the United Arab Emirates, Oman and Ontario. They had a child together during their time in Ontario. Following an allegation of domestic violence, the parties separated with no prospect of reconciliation. Mr. Dunmore now lives in Oman, while Ms. Mehralian remains in Ontario with their child.

3Ms. Mehralian commenced family law proceedings in Ontario. Mr. Dunmore moved to challenge the jurisdiction of Ontario courts, seeking the child’s return to his care in Oman. The judge hearing his motion concluded that the child’s habitual residence in Ontario meant that the Ontario courts had jurisdiction. Mr. Dunmore says the motion judge was wrong to conclude that the child was habitually resident there. He says the motion judge fell into error because she did not focus the analysis on whether he and Ms. Mehralian jointly intended to live in Ontario. In the absence of this shared parental intention, he says that the child was habitually resident in Oman.

4At the hearing, a majority of this Court dismissed Mr. Dunmore’s appeal with reasons to follow. These are those reasons.

5In Ontario, and some other Canadian jurisdictions, the legislature has adopted a statutory definition of “habitually resident” for the purpose of taking jurisdiction over parenting and contact order applications. That definition requires the court to look to where the child was residing at a prescribed time, in this case the time at which the child was most recently residing with both parents. The disagreement of the parties amounts to what “resided” means for this purpose — a term that is not defined in the Act , but on which the composite term “habitually resident” depends.

6While there are important differences in the principles bearing on cases that fall within and outside the Hague Convention , it remains true, as this Court said in Office of the Children’s Lawyer v. Balev , 2018 SCC 16 , [2018] 1 S.C.R. 398, that residence is a contextual and factual concept that should not be encumbered by unnecessary rigidity. As with the approach adopted in Balev , the court should consider all factors relevant to a child’s residence because this is the approach that best protects children. The guiding principle is not whether the parents had a settled intention to reside in the place but whether the child was at home there.

7In this case, the motion judge considered all the relevant circumstances and concluded that the family was residing in Ontario when the child last lived with both parents. There is no basis to interfere with that finding. The Ontario courts were therefore right to dismiss Mr. Dunmore’s motion to have the child immediately returned to Oman.

II. Background

A. Facts

8## Background

Mr. Dunmore is a Canadian citizen originally from Ontario. He has lived and worked outside of Canada for much of his career. Ms. Mehralian is an Iranian citizen and permanent resident of Canada. The parties met in Malaysia in 2014 and were married in Japan in 2015.

9The parties lived in various jurisdictions together, generally moving for reasons related to Mr. Dunmore’s employment. They moved to the United Arab Emirates in 2016. After a period of separation, they lived together in Oman from April 2018 until March 2020 when they travelled to Ontario. They did so for various reasons, including to visit Mr. Dunmore’s parents and so that he could write the Ontario bar exam.

10They had originally planned to return to Oman in early April 2020. However, the onset of the COVID-19 pandemic disrupted their plan and dissuaded them from leaving Ontario. The parties decided to stay with Mr. Dunmore’s parents, a situation that lasted until January 2021. It was during this period of time that the parties’ child was born.

11In January 2021, the parties and their child returned to Oman as Mr. Dunmore had been offered new employment there. However, the employment relationship with the Omani firm soon ended and, in April 2021, the parties and the child returned again to Ontario where Mr. Dunmore had found a new job.

12On May 30, 2021, the parties were on vacation in their chalet in Quebec. Police responded to an allegation of domestic violence there and the parties separated. In her statement to police, Ms. Mehralian alleged that there had been a pattern of violence throughout their relationship. At the hearing before this Court, the parties advised that criminal proceedings against Mr. Dunmore were unresolved.

13Mr. Dunmore now lives in Oman. Ms. Mehralian and the child have remained in Ontario.

B. Judicial History

14### Judicial History

In June 2021, Mr. Dunmore started a proceeding in Oman, seeking a divorce and custody of their child. The Omani courts ultimately granted a divorce and awarded primary custody to Ms. Mehralian.

15Ms. Mehralian commenced family law proceedings in the Ontario Superior Court of Justice one day after Mr. Dunmore had commenced proceedings in Oman. Issues concerning the validity of the Omani divorce were later severed from those concerning the jurisdiction of the Ontario courts in respect to the child.

16Mr. Dunmore moved for an order that the child be returned to Oman. The only disputed issue on the motion was whether the Ontario courts had jurisdiction over the parenting of the parties’ child.

(1) Ontario Superior Court of Justice, 2023 ONSC 2616 (Brownstone J.)

17### Ontario Superior Court of Justice, 2023 ONSC 2616 (Brownstone J.)

The motion judge concluded that Ontario courts had jurisdiction and dismissed Mr. Dunmore’s motion.

18Guided by the statute, she concluded that there was jurisdiction because the child was habitually resident in Ontario for the purposes of s. 22(1) (a) of the Act . She held that it was not necessary to find that the parties had a settled intention to remain in Ontario in order to conclude that the child was habitually resident. Instead she focused her analysis on whether the family was visiting Ontario in April and May 2021 or whether they were residing there, a key point on which the parties disagreed. In reviewing the evidence, she noted that both parties had credibility problems, leading her to rely on other evidence. However, on the core issue of residence in the period of April and May 2021, she expressly preferred Ms. Mehralian’s evidence. She concluded that after the birth of the child, when Mr. Dunmore declined employment with an Omani law firm and stated he would rather be in Canada, the couple decided to move to Canada. She noted they flew to Canada on one-way tickets, rented an apartment in Toronto and purchased furniture for it. Mr. Dunmore got an Ontario health card and a job in Ontario.

19Based on her review of the evidence, the motion judge concluded that the child was living with his parents in Ontario beginning in April 2021 and was therefore habitually resident for the purposes of the Act .

20The motion judge also found that even if the child had not been habitually resident, the courts would still have jurisdiction because all the criteria listed in s. 22(1) (b) of the Act had been met. Notably, she concluded that there were no pending extraprovincial proceedings because the parties’ proceedings in Oman had ended. She also concluded that the balance of convenience favoured taking jurisdiction because Mr. Dunmore was the only witness in Oman and virtual attendance was a possibility.

21The motion judge then turned to the issue of whether she should decline jurisdiction under s. 25 on the theory that Oman was a more appropriate forum. She noted that Mr. Dunmore had not made this request and concluded that even if this argument had been raised she would not have declined jurisdiction on this basis.

22As these conclusions were determinative of the motion, she did not consider whether the courts would have jurisdiction on the basis of serious harm under s. 23 or parens patriae jurisdiction.

(2) Court of Appeal for Ontario, 2023 ONCA 806 , 94 R.F.L. (8th) 255 (Monahan J.A., Trotter and Sossin JJ.A. Concurring)

23### Court of Appeal for Ontario, 2023 ONCA 806

Mr. Dunmore appealed the dismissal of his motion, arguing that the motion judge had erred in concluding that the child was habitually resident in Ontario because she had failed to consider the settled intention of the parties. In the alternative, he argued that because an Omani court order dealing with both divorce and custody had been recognized in Ontario divorce proceedings, Ontario courts did not have jurisdiction to make parenting orders in respect of the child.

24The Court of Appeal explained how the motion judge had made a finding of fact that the parties decided to move to Toronto, began residing there in April 2021 and were not merely temporarily visiting as Mr. Dunmore had claimed. The court said this decision was owed a high degree of deference as it was grounded in a careful review of the evidence and the motion judge’s credibility findings.

25The Court of Appeal concluded that Mr. Dunmore had failed to establish a reviewable error in the motion judge’s finding that the parties were residing in Ontario at the relevant time. With regard to Mr. Dunmore’s alternative argument, it said that the decision of a different Superior Court judge to recognize the Omani divorce did not oust the parenting jurisdiction of Ontario courts, because that decision addressed only divorce and not parenting.

26For those reasons, the Court of Appeal dismissed the appeal.

III. Issues

27## Issues

Mr. Dunmore appeals to this Court seeking to set aside the judgments of the Ontario courts. In their place he seeks an order returning the child to Oman as well as declarations that Ontario has no jurisdiction to make parenting orders regarding the child and that the child has been wrongfully retained in Ontario (A.F., at para. 123). He argues that the motion judge erred in taking jurisdiction over the child on the basis of habitual residence. He says habitual residence under s. 22 of the Act must be appreciated in reference to joint parental intention and that Ms. Mehralian’s attornment to proceedings in Oman excludes the jurisdiction of the Ontario courts (para. 56).

28He further argues that the motion judge erred in finding, in the alternative, that the Ontario courts could take jurisdiction over the child even if not habitually resident, pursuant to s. 22(1) (b) of the Act (A.F., at para. 56). In particular, he says that there was a pending application in Oman and that Ms. Mehralian’s attornment there means adjudication in Ontario is not appropriate on the balance of convenience (paras. 116-17).

29Ms. Mehralian disagrees and asks that the appeal be dismissed (R.F., at para. 58 ). She says the motion judge was right to conclude that the child was habitually resident in Ontario and says that attornment is not a relevant factor in that analysis (paras. 24 and 26). In the alternative, she says that the motion judge made no error in finding an alternative ground for jurisdiction under s. 22(1) (b) of the Act (para. 25).

30In these reasons, I consider only the issue of whether the Superior Court properly took jurisdiction on the grounds that the child was habitually resident in Ontario. As I agree with the courts below that the child was habitually resident in Ontario at the prescribed time, it is not necessary to consider the alternative ground for jurisdiction under s. 22(1) (b).

IV. Analysis

A. Jurisdiction to Make Parenting and Contact Orders

31## Analysis

This appeal turns on whether the motion judge properly took jurisdiction over Ms. Mehralian’s application. I therefore begin with the statutory scheme governing jurisdiction over applications like this one, which concern children outside the Hague Convention regime.

32The relevant scheme governing this application is found in Part III of the Act. It came into force in 1982, consolidating custody and access provisions from the Family Law Reform Act , R.S.O. 1980, c. 152, and guardianship provisions from the Minors Act , R.S.O. 1980, c. 292 (S. O’Connell, A. Volikis and L. Kirwin, The 2012-2013 Annotated Ontario Children’s Law Reform Act (2012), at p. 32). The same regime was considered very recently by this Court in F. v. N. , 2022 SCC 51 , at paras. 55-59 . While the Court was split on the outcome in that case, it was unanimous on the applicable legal principles (see para. 138, per Jamal J., dissenting). Part III allows parents and other persons to apply for a parenting order, dealing with decision-making responsibility or parenting time, or a contact order, dealing with contact with a child (ss. 18 and 21).

33The legislature has expressly enumerated four purposes that animate Part III, including to ensure that applications to courts concerning children will be dealt with on the basis of their best interests (s. 19(a); D.G. v. A.F. , 2014 ONCA 436 , at para. 33 ). The other purposes are 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 (s. 19(b) to (d); see F. v. N. , at para. 58 ; see also Brooks v. Brooks (1998), 1998 CanLII 7142 (ON CA) , 41 O.R. (3d) 191 (C.A.)). These purposes must guide the interpretation and application of the jurisdictional provisions in Part III (see, e.g., Ojeikere v. Ojeikere , 2018 ONCA 372 , 140 O.R. (3d) 561, at paras. 14-17 ). This aligns with this Court’s recent guidance in F. v. N. that the “best interests of the children are the paramount consideration for all decisions that concern children” (para. 61, citing Young v. Young , 1993 CanLII 34 (SCC) , [1993] 4 S.C.R. 3).

34A court may only make parenting and contact orders under Part III if a ground establishing its jurisdiction has been made out (see F. v. N. , at paras. 55-59 ; see also Dovigi v. Razi , 2012 ONCA 361 , 110 O.R. (3d) 593, at paras. 9-13 ; E. (H.) v. M. (M.) , 2015 ONCA 813 , 393 D.L.R. (4th) 267, at paras. 22-26 ). The Act contemplates four grounds for jurisdiction. First, the court may exercise jurisdiction in respect of a child that is “habitually resident” in Ontario at the commencement of the application ( s. 22(1) (a)). Second, the court may exercise jurisdiction if the child is not habitually resident in Ontario but is physically present and meets a number of other enumerated conditions, including that the balance of convenience favours exercising jurisdiction ( s. 22(1) (b)). Third, the court may exercise jurisdiction where the child is physically present in Ontario and would “suffer serious harm” from certain specified circumstances (s. 23). Fourth, the Superior Court’s parens patriae jurisdiction is not excluded by Part III (s. 69).

35To establish that the Ontario court has jurisdiction under the Act , the applicant need only point to one of these grounds for jurisdiction, which may not require finding that the child was habitually resident in Ontario. This is a distinction from the Hague Convention context, where the child’s habitual residence must be determined as a prerequisite to concluding that there is a wrongful removal or retention engaging the convention (see Balev , at para. 28 ; see also Geliedan v. Rawdah , 2020 ONCA 254 , 446 D.L.R. (4th) 440, at para. 32 ).

36Even where a court does have jurisdiction, taking up that jurisdiction is discretionary — it may decline to exercise it if there is a more appropriate forum for the dispute (see s. 25; E. (H.) , at para. 29 ; see also Murray v. Ceruti , 2014 ONCA 679 , 50 R.F.L. (7th) 298, at para. 33 ). Where the court does not have jurisdiction, or declines to exercise its jurisdiction, the court may nevertheless make broad discretionary interim orders under s. 40, which include ordering the return of the child to another jurisdiction (see Geliedan , at para. 69 ). This discretionary power is distinct from the Hague Convention context where a court is required to order the return of the child to their habitual residence following a determination of wrongful removal, subject to some specific exceptions (see Balev , at para. 29 ).

B. Habitual Residence as a Statutory Ground for Jurisdiction

37### Habitual Residence as a Statutory Ground for Jurisdiction

The ground for jurisdiction based on habitual residence is set out in s. 22(1) (a) of the Act :

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;

Jurisdiction under this ground depends on whether the child is habitually resident in Ontario “at the commencement of the application” ( s. 22(1) (a); see Los v. Ross , 2024 ONCA 122 , 10 R.F.L. (9th) 51, at paras. 38-39 ).

38The Act expressly defines what it means for a child to be “habitually resident” for this purpose in s. 22(2) and (3) , displacing the common law ( Dovigi , at para. 18 ). Similar definitions can be found in analogous schemes elsewhere in Canada ( Family Law Act , S.B.C. 2011, c. 25, s. 72(2); Family Law Act , S.N.B. 2020, c. 23, s. 68(2); Children’s Law Act , R.S.N.L. 1990, c. C-13, s. 28(2); Children’s Law Act , S.P.E.I. 2020, c. 59, s. 35(3); Children’s Law Act , R.S.Y. 2002, c. 31, s. 37(2); Children’s Law Act , S.N.W.T. 1997, c. 14, s. 25(2); Children’s Law Act , C.S.Nu., c. C-70, s. 25(2)), though some legislatures have left the term undefined (see, e.g., The Children’s Law Act, 2020 , S.S. 2020, c. 2, s. 6) or have adopted more open-textured definitions (see, e.g., The Domicile and Habitual Residence Act , C.C.S.M., c. D96, s. 9(2)). I note parenthetically that the child’s domicile, rather than habitual residence, is the focus of the jurisdictional analysis in Quebec (see generally Civil Code of Québec , art. 3142; Droit de la famille — 131294 , 2013 QCCA 883 , [2013] R.J.Q. 849; M. Tétrault, Droit de la famille (4th ed. 2010), vol. 4, at c. 18). Ontario’s statutory definition in s. 22(2) and (3) is a further point of distinction from the Hague Convention , where “habitual residence” is undefined ( Balev , at para. 28 ).

39As is the case with all statutory definitions, understanding s. 22(2) and (3) requires reading the text in context and in light of its purpose ( Rizzo & Rizzo Shoes Ltd. (Re) , 1998 CanLII 837 (SCC) , [1998] 1 S.C.R. 27, at para. 21 ; R. v. Wolfe , 2024 SCC 34 , at paras. 32-33 ; Telus Communications Inc. v. Federation of Canadian Municipalities , 2025 SCC 15 , at para. 30 ). Courts are bound to give effect to the legislative direction that has been so expressed.

40Section 22(2) makes clear that whether a child is habitually resident in Ontario at the time of the commencement of the application requires asking where the child resided at a different point in time on or before that date — “where the child resided in whichever of the [circumstances enumerated in s. 22(2) ] last occurred ” (see generally Dovigi , at paras. 17-18 ). The enumerated circumstances are the following: (1) the child resided with both parents; (2) the child resided with one parent under agreement, consent, acquiescence or court order; or (3) the child resided with a person other than a parent “on a permanent basis for a significant period of time” ( s. 22(2) ).

41Section 22(3) adds that habitual residence cannot be altered by the removal or withholding of a child, unless it is done with the consent of all persons having decision-making responsibility with respect to the child or there has been acquiescence or undue delay in commencing due process (see Ojeikere , at para. 23 ; Dovigi , at para. 19 ; see also, e.g., Malpani v. Malpani , 2022 ONSC 4123 , at para. 17 ).

42Therefore, the combined effect of s. 22(2) and (3) is that habitual residence is determined in reference to the most recent time at which both of two conditions were met: (1) the child “resided” in one of the three circumstances enumerated in s. 22(2) ; and (2) the child was not removed or withheld without the consent, acquiescence or undue delay of all persons having decision-making responsibility within the meaning of s. 22(3). For ease of reference, I refer to that time as the “prescribed time”.

43These subsections serve Part III’s purpose of dissuading the abduction of children as an alternative to due process (see s. 19(c); Ojeikere , at paras. 14-16 ). They ensure that if a child has been wrongfully removed or withheld before the commencement of the application, it is generally their residence before the wrongful act that is determinative of jurisdiction. Article 3 of the Hague Convention achieves something very similar, though it does so through different means. Habitual residence for that purpose is not determined at the commencement of the application but immediately before removal or retention (see Balev , at para. 28 ). In this way it is also backwards-looking and ensures that subsequent abduction does not impact the application of the Hague Convention (see Balev , at para. 67 ).

44A court faced with the question of whether the child was habitually resident in Ontario at the commencement of the application must, then, simply ask whether the child “resided” there at the prescribed time. The Act does not define what it means to reside.

45The parties do not seriously dispute these broad contours of the statutory definition. Rather, Mr. Dunmore argues that, for the purposes of this statutory definition, the family did not reside in Ontario at the prescribed time (A.F., at paras. 104-5), while Ms. Mehralian says they did (R.F., at para. 41 ). To resolve this appeal, we have to understand what it means for a child to “reside” in a place for the purposes of s. 22 .

C. A Child Resides Where They Are at Home

(1) The Word “Resided” Must Be Appreciated Purposively and in Context

46### A Child Resides Where They Are at Home

Absent a statutory definition, the ordinary meaning of a term is a helpful starting place. The ordinary meaning of “to reside” is simply to live or be at home in a place, in whatever form that takes (see generally Cambridge Dictionary (online), sub verbo “reside”; Oxford English Dictionary (online), sub verbo “reside”; N. McCormack, Pocket Dictionary of Canadian Law (6th ed. 2023), sub verbo “reside”; Le Petit Robert (new ed. 2025), sub verbo “ résider ”).

47The concept of residence has long been used in various private international law contexts to denote something that is generally more than visiting or sojourning, but without the formalities inherent in concepts like domicile, nationality or citizenship (see S. G. A. Pitel, Conflict of Laws (3rd ed. 2025), at pp. 22-23; Thomson v. Minister of National Revenue , 1946 CanLII 1 (SCC) , [1946] S.C.R. 209; Lor v. Lor (1978), 1978 CanLII 3124 (NS CA) , 5 R.F.L. (2d) 138 (N.S.S.C. (App. Div.)), at p. 144; Adderson v. Adderson (1987), 1987 ABCA 52 (CanLII) , 36 D.L.R. (4th) 631 (Alta. C.A.), at p. 633). As this Court put it in Thomson , residence connotes a place where someone “regularly, normally or customarily lives”, which is to be contrasted with a place where someone “unusually, casually or intermittently visits or stays” (pp. 231-32; see also Attorney General of Canada v. Canard , 1975 CanLII 137 (SCC) , [1976] 1 S.C.R. 170, at p. 197). This is, of course, a matter of degree. The “difference cannot be stated in precise and definite terms”, but rather “each case must be determined after all of the relevant factors are taken into consideration” ( Thomson , at p. 232).

48This Court has also made clear that what it means to reside varies between statutory contexts ( R. v. Clement (1914), 1914 CanLII 667 (SCC) , 6 W.W.R. 414 ; see also Lor , at p. 144 ; Pitel, at pp. 22-23 and 29-30). Since the meaning of a statutory term varies depending on the context in which it is used, caution is required when construing the words of one statute by reference to the interpretation given to similar words in another (see P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021) , at paras. 1826-29, citing Lanston Monotype Machine Co. v. Northern Publishing Co. (1922), 1922 CanLII 59 (SCC) , 63 S.C.R. 482, at p. 497). We should not, therefore, be searching for a universal concept of residence, but rather should ascertain what this well-known word means when used by the legislature in this specific family law context. In particular, the meaning of “resided” must be understood in reference to the general purposes of Part III, including ensuring applications are determined on the basis of the best interests of the child, avoiding the concurrent exercise of jurisdiction and discouraging the abduction of children as an alternative to due process (s. 19; see generally Re Kelly Infants , 1970 CanLII 424 (ON SC) , [1970] 2 O.R. 608 (Surr. Ct.); Ojeikere , at para. 13 ). These underlying purposes animate the interpretation, though this does not mean that determining where a child resided is the same as an inquiry into where it is in the best interest of the child to live (see, by analogy, F. v. N. , at paras. 67-68 ; see also Ojeikere , at para. 15 ). Nor is the question whether there is substantial evidence concerning those best interests in Ontario or whether there is a “real and substantial” connection to Ontario, questions raised under the distinct ground for jurisdiction under s. 22(1)(b). Rather, under s. 22(1) (a) the focus remains on where the child “resided” for jurisdictional purposes (see Ojeikere , at para. 15 ).

49I agree with the parties that the hybrid definition of “habitually resident” discussed in Balev in relation to the Hague Convention does not apply directly to s. 22 (A.F., at para. 81; R. F. , at para. 22 ). Even though both the Hague Convention and the Act employ the term “habitually resident”, there are relevant differences between how each defines and uses that term. Importantly, while the term as used in Article 3 is not defined in the Hague Convention ( see Balev , at para. 28 ), the Act does contain language defining what “habitually resident” means for the purpose of s. 22(1) (a). When interpreting the Act, this Court must take into account the explicit legislative direction in s. 22(2) and (3) ( see Kong v. Song , 2019 BCCA 84 , 21 B.C.L.R. (6th) 284 , at paras. 72-75 ). We must also be mindful of the different ways in which the concept is used in both regimes. Under the Hague Convention , it is assessed immediately before removal or retention (Article 3), rather than at the commencement of the application as in s. 22(1) (a) of the Act ( see Pengelly v. Lynas , 2024 ONSC 6269 , at para. 29 ). Given this different context, adopting the same definition of “habitually resident” could actually result in very different outcomes under each regime for a child that is wrongfully removed prior to the commencement of the application. That child may no longer be “habitually resident” at the commencement of the application within the Hague Convention meaning that, unlike the s. 22(2) and (3) definition, does not look at where a child was residing at an earlier prescribed time.

50However, similar considerations may still inform the analysis when answering the distinct question of where a child “resided” for the purpose of s. 22 (see Zafar v. Azeem , 2024 ONCA 15 , 97 R.F.L. (8th) 3, at para. 74 ). In general, when a legislative provision has been inspired by foreign sources, the interpretation that has been given to those sources can be considered in interpreting the provision (see Côté and Devinat, at para. 1814) . More specifically, as Kasirer J. recently confirmed in F. v. N. , it is “not improper to look at the Hague Convention for the interpretation of domestic legislation” like Part III of the Act, even though the two regimes operate independently of each other (para. 53). After all, the purposes of the Hague Convention are similar to those of Part III (compare Hague Convention , Article 1, and Act, s. 19 ), and both schemes were put in place around the same time to pursue those purposes ( N. Bala, “ O.C.L. v. Balev : Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of the CLRA” (2019), 38 C.F.L.Q. 301, at pp. 308-9 ). It would be wrong to dismiss the holdings in Balev as irrelevant to the interpretative question before us here, even if they must be adapted to this different legislative context.

51With these general principles in mind, I now turn to consider the primary point of disagreement between the parties: whether the term requires a focus on the shared intention of the parents.

(2) The Shared Parental Intention Approach Must Be Rejected

52### The Shared Parental Intention Approach Must Be Rejected

Mr. Dunmore argues that courts should take a shared parental intention approach in determining where a child “resided” (A.F., at para. 102). He says that we must look to the place where the person resides for an appreciable period of time with a “settled intention”, and that for a child that intention should be that of the parents. I disagree.

53There is nothing in the text of the provision that indicates the ordinary meaning of “resided” is displaced by a concept focused around shared parental intention (see Korenic v. DePotter , 2022 ONSC 3954 , 77 R.F.L. (8th) 207, at para. 22 ; Logan v. Logan , 2022 ONSC 4927 , 82 R.F.L. (8th) 193, at paras. 27-28 ; Barakat v. Andraos , 2023 ONSC 582 , 85 R.F.L. (8th) 189, at para. 66 ). Rather, the distinct concepts of parental “consent”, “acquiescence”, “undue delay”, etc., are already used elsewhere in the statutory definition of habitual residence in s. 22(2) and (3). Notably, while the concept of “consent” is expressly mentioned in the enumerated circumstance applicable to parents living separate and apart ( s. 22(2) 2), it is completely absent from the circumstance applicable to this case, which simply refers to where the child is residing with both parents ( s. 22(2) 1). In his own words, Mr. Dunmore is saying that parental intention must be further “read into” the statutory definition of habitual residence (A.F., at para. 98), but the legislature has simply used the word “resided” here. Indeed, if mutual parental consent was always required for a child to “reside” somewhere, the references to consent and related concepts in ss. 22(2) 2 and 22(3) would be redundant.

54Further, Mr. Dunmore has failed to show that the legislature’s intent when it enacted s. 22 or its predecessors was to adopt the shared parental intention approach. Instead, he cites to broad statements of purpose in Hansard, with which no one seriously disagrees, such as the deterrence of child abduction (A.F., at para. 65). Those purposes do not require a shared parental intention approach. As I have explained, the other components of the s. 22(2) and (3) definition ensure habitual residence cannot generally be changed by abduction or wrongful withholding. They do not require a strained meaning of the term “resided”.

55This Court’s guidance in Balev serves to underline the inappropriateness of a shared intention approach here. This Court has said, in the Hague Convention context, that attempts to overlay the fact-specific concept of habitual residence with complex legal constructs like parental intention have failed (see Balev , at paras. 69 and 73 ). This militates equally against an artificially narrow reading of “resided” in the Act . Balev stands for the proposition that a more open-textured approach best fulfills the goals of prompt return and best protects children (paras. 59 et seq.). This guidance is equally true of Part III, which shares the same broad goals ( s. 19 ; Bala, at pp. 308-9).

56This Court has also said that a parental intention approach allows parents to manipulate the scheme to their own ends (see Balev , at para. 61 ), a feature that is similarly undesirable here. Parents cannot be allowed to contract out of the ordinary meaning of “resided” used by the legislature (see, by analogy, Balev , at para. 73 ). The legislature directs us to where the child actually resided, not where the parents agreed the child would reside.

57The vulnerability of the shared parental intention approach to manipulation is particularly relevant in cases involving family violence. Family violence is broadly defined in Part III to include any violent or threatening conduct, as well as patterns of coercive or controlling behaviour, between family members (s. 18). Tactics and patterns of abuse such as “isolation, manipulation, humiliation, surveillance, micro-regulation of gender performance, economic abuse, intimidation, and threats” as well as acts of physical and sexual violence can undermine a victim’s autonomy, including the ability to freely express their intention (J. Mosher et al., “Submission to Justice Canada on the Criminalization of Coercive Control”, in Osgoode Hall Law School Legal Studies Research Paper Series, Research Paper No. 4619067 (October 30, 2023), at p. 5; see also J. Tolmie, R. Smith and D. Wilson, “Understanding Intimate Partner Violence: Why Coercive Control Requires a Social and Systemic Entrapment Framework” (2024), 30 Violence Against Women 54). In circumstances involving family violence, judges may understandably struggle to find any genuinely shared parental intention to reside in a specific location.

58Nor do I accept that it is a less complex standard because it does not require a consideration of all relevant factors (see Balev , at para. 62 ). The parental intention approach “often leads to detailed and conflicting evidence as to the intentions of the parents” ( Balev , at para. 62 , citing R. Schuz, The Hague Child Abduction Convention: A Critical Analysis (2013), at p. 211). There is perhaps no better illustration than this case where, as I explain in more detail below, the parties went to extraordinary lengths to demonstrate their intentions, filing thousands of pages of material including many messages exchanged between them that are at most marginally relevant to the issues. Where the parties disagree about what they intended, courts are liable to become drawn into these complex debates about states of mind that are intangible and subjective. This is an undesirable distraction from the concrete situation of the child, which the legislature quite logically directs us to consider in referring to the place where the child “resided”.

59A shared intention approach thus wrongly takes the focus away from objective factors, such as where the child lived, and gives undue priority to the parents’ subjective views. It treats children as “passive recipients of their parents’ decisions”, when the better view is that they are “people with a part to play in their own lives” ( In re LC (Children) , [2014] UKSC 1, [2014] A.C. 1038, at para. 87 , per Lady Hale, concurring).

60To 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 ( F. v. N. , at para. 53 ; Geliedan , at para. 38 ; Ojeikere , at paras. 60-61 ), nor that they will demonstrate the reciprocity necessary for orderly interjurisdictional decision making with respect to children ( F. v. N. , at para. 73 ; J. Morley, “International child abduction and non-Hague Convention countries”, in M. Freeman and N. Taylor, eds., Research Handbook on International Child Abduction: The 1980 Hague Convention (2023), 244, at pp. 249-50). In this context, Professor Nicholas Bala notes that parents, “especially mothers”, may have “great challenges” in enforcing custody rights in some non- Hague countries, “even if the children were born in Canada and spent their entire lives here” (pp. 309 and 357; see also Morley, at p. 252).

61In this context, Ontario courts should be even more cautious before accepting a rigid approach to the meaning of “resided” that would stand in the way of them taking jurisdiction. Balev ’s rejection of the shared parental intention approach therefore applies with even greater force in these circumstances.

(3) Determining Whether a Child Is at Home

62### Determining Whether a Child Is at Home

The proper interpretation of the word “resided”, grounded in the text, context and purpose of Part III, is simply living in a place as opposed to merely visiting it. One way of expressing what it means to be residing somewhere, rather than merely sojourning or visiting, is that a child resides where they are at home (see, e.g., Monasky v. Taglieri , 589 U.S. 68 (2020), at pp. 76-79 and 83-84; I.F., Office of the Children’s Lawyer, at para. 7 ; see also Cambridge Dictionary , sub verbo “reside”; Oxford English Dictionary , sub verbo “reside”). The notion of home helps to remind us that we are not in search of legal formalities here, but must remain squarely focused on the child’s life and circumstances when asking where they reside.

63The jurisprudence is already replete with guidance relevant to the interpretation of where a child “resided” for the purposes of s. 22 of the Act . I recall some of these general principles here.

64First, physical presence in a jurisdiction at a point in time is neither necessary nor sufficient to reside in that jurisdiction at that time (A. Wilton, G. S. Joseph and T. Train, Parenting Law and Practice in Canada (loose-leaf), at § 3:19.10; Aslanimehr v. Hashemi , 2022 BCCA 248 , 76 R.F.L. (8th) 269, at para. 44 ; Sheidaei-Gandovani v. Makramati , 2016 ONCJ 326 , at para. 22 ). For example, in this case, separation happened when the family was on holiday in Quebec, but no one suggests they were resident in Quebec at the time, nor that residence in Oman or Ontario was excluded by this fact.

65Second, permanence is not necessary for residence ( see Johnson v. Athimootil (2007), 2007 CanLII 41434 (ON SC) , 49 R.F.L. (6th) 106 (Ont. S.C.J.) , at para. 16 ; H. (A.) v. H. (F.S.) , 2013 ONSC 1308 , 28 R.F.L. (7th) 163, at para. 57 , aff’d 2013 ONCA 227 ; Sanders v. Aerts , 2014 ONCJ 20 , 42 R.F.L. (7th) 477 , at para. 25 ; Sheidaei-Gandovani , at para. 23 ). A child can reside somewhere even if no one intends they live there permanently. Concluding otherwise would notably render the language of “on a permanent basis for a significant period of time” in s. 22(2) 3 a tautology (see Chan v. Chow , 2001 BCCA 276 , 199 D.L.R. (4th) 478, at para. 36 ). 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 ).

66Third, as this Court said in Balev , 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 (paras. 44-45; see also Zafar , at para. 74 ; Los , at para. 31 ). This does not mean an exclusive focus on shared parental intention, but rather it recognizes that very young children rely on the adults in their lives to create a home for them, and the ties of those adults to a jurisdiction, including their intentions about the family’s residence, therefore become relevant (see Zafar , at para. 75 ; Balev , at para. 45 ). As children become older, their own ties to the jurisdiction take on greater importance. I agree with the Office of the Children’s Lawyer that, to the extent possible, the voice of the child and their own views on the connections that they have formed in Ontario ought to be considered (I.F., at paras. 7-8 ). This is not only consonant with the purposes of this Part, but also with the general legislative direction in s. 64(1). This subsection provides that, where possible, a court “shall take into consideration the views and preferences of the child” in considering applications under Part III (see, e.g., Moussa v. Sundhu , 2018 ONCJ 284 , 11 R.F.L. (8th) 497, at paras. 38-39 ).

67Fourth, a child may reside in more than one jurisdiction at any given time (see Cartwright v. Hinds (1883), 3 O.R. 384 (H.C.J. (C.P. Div.)), at p. 395; Brouillard v. Racine (2002), 2002 CanLII 2648 (ON SC) , 33 R.F.L. (5th) 48 (Ont. S.C.J.), at para. 12 ; Riley v. Wildhaber , 2011 ONSC 3456 , 336 D.L.R. (4th) 604 (Div. Ct.), at para. 42 ; Bala, at pp. 330-32). This “reflects the reality of children who share their time with both parents in different jurisdictions” (Wilton, Joseph and Train, at § 3:19.10, citing Riley ). Though one of the general purposes of Part III is to avoid concurrent exercise of jurisdiction in more than one place (s. 19(b)), Ontario courts in a situation of concurrent habitual residence can still decline jurisdiction in favour of a more appropriate forum with which the child has a closer connection (s. 25).

68Courts 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 ). I emphasize 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. For example, as I explain below, attornment of the parents to a foreign jurisdiction is, by itself, irrelevant to where the child is residing for the purposes of s. 22(2) and (3) of the Act .

69As in Balev , 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 ( Balev , at para. 64 ; see also A v. A , [2013] UKSC 60, [2014] A.C. 1, at paras. 48 and 54 ; Mercredi v. Chaffe , C‑497/10 PPU, [2010] E.C.R. I‑14358 (C.J.), at paras. 47 et seq.). 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 (see generally Wilton, Joseph and Train, at § 3:19.10; Khan v. Raza , 2024 ONCJ 382 , at para. 51 ; X.L. v. C.B. , 2024 ONSC 3895 , at paras. 244 and 246 ; Kalra v. Bhatia , 2024 ONSC 1443 , at para. 67 ).

70By way of example, when considering whether the children resided with their mother in Ontario, the court in Raza considered relevant to its analysis that the children’s family physicians were in Toronto, and that one of the children was enrolled in occupational therapy and received specialized support for his disability (paras. 26 and 51). The mother’s continued access of child tax benefits and other social assistance also bore upon the matter of the child’s habitual residence (para. 51). Similarly, in C.B. , the child’s active participation in many Chinese festivals and other cultural events was relevant as evidence that she was habitually resident in China (para. 244(e)). The court also noted the child’s strong bond and connection to her maternal grandmother in China (para. 244(d)).

71In 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.

72I highlight, in this respect, argument of the interveners speaking to the need to consider the practical realities for migrant children (I.F., Defence for Children International – Canada and Centre for Refugee Children, at para. 4). The determination of where a child resided must remain sufficiently flexible to adapt to the varied and very real circumstances of migrant children. It is significant in this respect that citizenship is but one factor to consider, among many, in determining whether a child is habitually resident, and it alone is insufficient to demonstrate that a child was habitually resident ( Korenic , at para. 27 ; Jarrar v. Al-Khalili , 2024 ONSC 7134 , 10 R.F.L. (9th) 271 , at para. 44 ; Osaloni v. Osaloni , 2023 ABCA 116 , at para. 10 ; Kong v. Song , 2018 BCSC 1691 , at para. 19 , aff’d 2019 BCCA 84 , 21 B.C.L.R. (6th) 284 ; Bala, at p. 319). Additionally, certain principles, such as the impermanence of a child’s residence and their possible residence in more than one jurisdiction, may take on particular significance when asking where a migrant child last resided (see, e.g., G.M. ; Riley , at para. 42 ).

73As 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, a point also raised by some interveners (I.F., South Asian Legal Clinic of Ontario, South Asian Legal Clinic of British Columbia and South Asian Bar Association, at paras. 4 and 14-17; I.F., Barbra Schlifer Commemorative Clinic, at para. 3). Evidence of family violence is relevant to the court in determining whether it should exercise jurisdiction over a child in circumstances involving serious harm pursuant to s. 23 of the Act (see Zafar , at para. 84 , citing Pollastro v. Pollastro (1999), 1999 CanLII 3702 (ON CA) , 43 O.R. (3d) 485 (C.A.); see also F. v. N. , at para. 68 ). It may also be relevant to the issue of whether one party has given consent or has acquiesced to the child living with the other parent under s. 22(2) 2. Evidence of emotional, psychological or verbal abuse, intimidation tactics and other forms of controlling behaviour by one party that cause fear in the mind of the other party may provide a foundation for the type of duress which could serve to vitiate consent (see generally Ogunboye v. Faoye , 2023 ONCJ 46 , 84 R.F.L. (8th) 99, at para. 103 , citing Kinsella v. Mills , 2020 ONSC 4785 , 44 R.F.L. (8th) 1). While it is not directly relevant in the same way to the question of where the child resided, it forms part of the broader context of which judges should always be mindful.

74I emphasize that determining where the child “resided” is only part of the habitual residence analysis and is not necessarily determinative of jurisdiction. 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) ( see Aslanimehr , at para. 38 ). As I have said, this legislative direction is not present in the Hague Convention context and represents a point of departure between the two regimes. Though the analysis of what it means to “reside” bears similarities to Balev , determining whether a child is habitually resident under the Act is a distinct exercise. This is because, in the Act, the word “resided” is only one part of the statutory definition of “habitually resident”, as elaborated in s. 22(2) and (3). Further, there may be grounds for jurisdiction even if the habitual residence requirement in s. 22(1) (a) is not met. And even where Ontario courts have jurisdiction on the basis of habitual residence, it remains open to them, in appropriate cases, to decline that jurisdiction and order the return of a child to another place anyway (see ss. 25 and 40; see also Brooks ). The word “resided” therefore need not, and does not, do all the analytical work in determining motions seeking an order returning the child to another jurisdiction.

75I end this section by underscoring that all participants in the justice system bear a critical responsibility to create an environment that promotes “timely and affordable access to the civil justice system” ( Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87, at para. 2 ), a responsibility that is especially acute in cases where the interests of children are at stake. Judges, litigants and their counsel must exercise the powers open to them to ensure that litigation is proportionate and efficient (see R. v. Haevischer , 2023 SCC 11 , at para. 51 ). They must not allow disputes about where a child resided to become needlessly complex and stimulate the production of an undue volume of documentary evidence.

76International child abduction cases must be dealt with “promptly” ( Family Law Rules , O. Reg. 114/99, r. 37.2(3); see Zafar , at para. 42 ). When hearing such cases, judges must not hesitate to use the case management powers available to them to expedite the proceedings. 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.

77I note the Superior Court found that the hearing timeline for this motion was “outside of the range that will provide justice to the child” (A.R., vol. I, at p. 55) and that while “this application needed to be heard with alacrity”, this did not happen ( 2023 ONSC 1044 , 88 R.F.L. (8th) 207, at para. 21 ). This proceeding, which I recall involves an allegation that a child was being wrongfully withheld from their parent since May 2021, was commenced in June 2021 but only heard in March 2023. The record in this case went well beyond what was needed to determine the jurisdictional question at issue, especially because it turns on the straightforward question of where the child was residing. At first instance, the parties filed over 4,000 pages of material (A.R., vol. I, at p. 44). Over 20,000 text messages were recovered by a jointly retained expert (p. 45). The parties relied on these messages to construct elaborate and contradictory narratives about their intentions that were at most peripherally relevant to where the child was residing. The parties also each filed expert evidence from multiple expert affiants (pp. 44-45). It is not clear how the manner in which this case proceeded through the system could ever be reconciled with the responsibility to pursue timely and efficient justice. All participants in the family justice system must do more to expedite the resolution of jurisdictional disputes concerning children.

D. Ontario Courts Had Jurisdiction Because the Child Was Habitually Resident

78Having identified the relevant principles, I turn now to whether the Ontario courts properly took jurisdiction in this case.

79### Ontario Courts Had Jurisdiction Because the Child Was Habitually Resident

Determining whether the parties’ child was habitually resident in Ontario begins by identifying the prescribed time. On the particular facts of this case, that is May 30, 2021. It is undisputed that the child resided with both parents until separation on May 30, 2021, and was not removed or withheld at this time (A.F., at paras. 23-31; R.F., at paras. 15 and 41 ). There is no suggestion that between this date and the commencement of the application in June 2021 the child was residing with both parents, was residing with one parent under agreement, consent, acquiescence or court order, or was residing with a person other than a parent on a permanent basis for a significant period of time (A.F., at para. 33; R.F., at para. 15 ). In other words, it was on May 30, 2021, when the circumstances enumerated in s. 22(2) last occurred.

80Therefore, whether the child was habitually resident at the commencement of the application turns on whether he was “residing” with both parents in Ontario on May 30, 2021. The motion judge found that he was (para. 77).

81Before this Court, Mr. Dunmore argues that the motion judge erred in law by declining to conduct an analysis of the parties’ shared intention (A.F., at para. 104). In his submission, had the motion judge employed a settled intention analysis, she would have found that there was no basis to assume jurisdiction under s. 22(1) (a) because he and Ms. Mehralian never shared any intention to reside in Ontario (para. 105). The overall thrust of his argument is that they were merely visiting on a temporary basis and that the last place the family lived together with shared intention was Oman (para. 105). Our task is to decide whether these submissions provide a basis to interfere with the finding of the motion judge.

(1) No Basis to Interfere With the Motion Judge’s Finding

82### No Basis to Interfere With the Motion Judge’s Finding

Whether a child was residing in a place is a question of mixed fact and law, because it involves applying a legal standard to facts ( see K.F. v. J.F . , 2022 NLCA 33 , 7 C.A.N.L.R. 609 , at para. 49 ; Rifkin v. Peled-Rifkin , 2017 NBCA 3 , 89 R.F.L. (7th) 194 , at para. 3 ; Aslanimehr , at para. 48 ; see also Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , at para. 26 ; Ontario (Attorney General) v. Restoule , 2024 SCC 27 , at para. 90 ). The answer to this question will not be disturbed on appeal unless Mr. Dunmore can identify an extricable legal error or a palpable and overriding error ( Housen , at para. 36 ). This accords with the deference this Court has said is owed on the question of habitual residence under the Hague Convention ( Balev , at para. 38 ) and with the “vital importance” of a posture of appellate deference in family law matters generally ( F. v. N. , at para. 75 ; see also Barendregt v. Grebliunas , 2022 SCC 22 , [2022] 1 S.C.R. 517 , at para. 104 ).

83Mr. Dunmore has failed to establish a reviewable error in the motion judge’s finding that the family was residing in Ontario at the prescribed time.

84The motion judge did not have the benefit of our statement of principles, but she nonetheless took an appropriately flexible approach to determining where the child resided. She was correct not to feel bound to focus her analysis on the settled common intention of the parties (para. 44). Indeed, the motion judge would have fallen into error had she based her analysis solely on shared parental intention. The motion judge never stated that such parental intention is irrelevant in every case, and drew conclusions about each parent’s intentions (see, e.g., paras. 70-71 and 76). She considered this as part of a broader constellation of factors properly focused on the actual circumstances of the child.

85In my view, Mr. Dunmore’s real quarrel is with the motion judge’s findings of fact, flowing in part from the finding that Ms. Mehralian’s evidence was preferred to his on the critical issues (para. 54). For this Court to accept his submission that the family was not resident in Ontario would require setting aside facts as found by the motion judge in favour of his different version of events, and there is no basis to do so.

86For example, Mr. Dunmore argues that the parties had agreed to return to Ontario for a brief period of time and that he never intended to reside there (A.F., at para. 105). But the motion judge observed that w hen Mr. Dunmore sponsored Ms. Mehralian for permanent residency status he advised the Government of Canada that he intended to move to and live in Toronto (para. 51). The parties flew to Toronto in April 2021 on one-way tickets and purchased furniture for their long-term rental apartment (paras. 72 and 76). Mr. Dunmore applied widely to law firms in Toronto, and obtained favourable mortgage terms by stating he was working in Canada (para. 51). In rejecting his Omani employment contract, Mr. Dunmore expressed to Ms. Mehralian that he would “rather be in Canada” (para. 64). Mr. Dunmore had signed an employment contract with a Toronto firm and had a provincial health card (paras. 27 and 76). The motion judge rejected Mr. Dunmore’s alternative suggestion that he only came to Canada in April 2021 because of threats made by Ms. Mehralian (para. 70). Mr. Dunmore points to no palpable and overriding errors that would justify overturning these findings of fact.

87The motion judge also found that the child had significant links to the jurisdiction at the time, notably through family. His father was Canadian and his mother was a permanent resident, and he had extended family on both sides who lived in Ontario (para. 85). He had spent the majority of his young life in Ontario where this family lived (para. 81). His real home was in Ontario (para. 85).

88Even if the motion judge had applied the wrong law it would have had no bearing on the outcome in this case. The facts she found are more than sufficient to support the conclusion that the child resided in Ontario at the relevant time.

(2) Attornment Did Not Oust Jurisdiction Grounded in Habitual Residence

89### Attornment Did Not Oust Jurisdiction Grounded in Habitual Residence

Mr. Dunmore also argues that Ms. Mehralian’s attornment to the Omani divorce proceedings ousted the parenting jurisdiction of Ontario courts in relation to the child (A.F., at paras. 119-21). He says such attornment is “fatal” to a claimant’s case (para. 121). I disagree.

90Mr. Dunmore directs us to case law concerning the relevance of attornment in a foreign court to the enforcement, in Ontario, of the foreign judgment (A.F., at para. 118, citing Beals v. Saldanha , 2003 SCC 72 , [2003] 3 S.C.R. 416). But the enforceability of an Omani order is not at issue — the question is whether the Ontario courts have jurisdiction under s. 22(1) (a). This ground for jurisdiction displaces the common law and reliance on common law attornment to oust it is misplaced (see E. (H.) , at para. 80 ).

91Further, I recall that 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.

92Without excluding the possibility that attornment to another forum could be one factor relevant to the analysis under other provisions of Part III, such as s. 22(1) (b) or 25 ( see Murray , at paras. 38-40 ; E. (H.) , at paras. 81 and 83 ), Mr. Dunmore has failed to establish that attornment has any role to play in the habitual residence analysis, let alone a determinative one.

93In particular, I note that Mr. Dunmore never asked the Ontario courts to decline jurisdiction under s. 25, on the basis of attornment or otherwise (motion judge’s reasons, at para. 88). His argument was solely focused on whether the Ontario courts have jurisdiction. They do.

(3) Other Grounds for Jurisdiction Need Not Be Considered

94### Other Grounds for Jurisdiction Need Not Be Considered

The motion judge found that even if the child was not habitually resident in Ontario, jurisdiction could still be exercised under a separate ground for jurisdiction under s. 22(1) (b) (para. 78). Mr. Dunmore takes issue with the motion judge’s analysis on this point.

95I decline to consider these submissions. Given that a ground for jurisdiction has been made out on the basis of habitual residence, this issue no longer has any bearing on the disposition of the appeal. The argument on this point concerns fact-specific determinations made by the motion judge rather than general points of law on which guidance would be beneficial to other litigants.

V. Conclusion

96## Conclusion

These reasons explain the Court’s decision to dismiss the appeal. The decision on costs was reserved and I would award costs to Ms. Mehralian.

The following are the reasons delivered by

Côté J. —

I. Overview

97## Dissenting Reasons: Overview

This appeal requires our Court to interpret the definition of “habitual residence” in s. 22 of the Children’s Law Reform Act , R.S.O. 1990, c. C.12 (“ CLRA ”). If a child is “habitually resident” in Ontario, s. 22 of the CLRA allows an Ontario court to take jurisdiction to make a parenting or contact order with respect to that child. The definition applies only in the event that a child is not subject to the Convention on the Civil Aspects of International Child Abduction , Can. T.S. 1983 No. 35 (“ Hague Convention ”). Unlike the Hague Convention , the CLRA expressly defines “habitual residence” in s. 22(2) . This means that the question before our Court is fundamentally one of statutory interpretation — the question is not what the best approach to determining habitual residence should be in the eyes of our Court.

98Despite the clear definition of “habitual residence” in s. 22 of the CLRA , my colleague Martin J. concludes that a broad, all‑encompassing test should be applied to determine where a child is “at home”. Though my colleague purports to reject the hybrid approach to determining habitual residence that our Court adopted in Office of the Children’s Lawyer v. Balev , 2018 SCC 16 , [2018] 1 S.C.R. 398, for Hague Convention cases, she proceeds to outline a test that seems almost identical to that hybrid approach, and she disregards explicit language in the CLRA stating that a child’s habitual residence cannot be modified unilaterally by one parent.

99With respect, this cannot be the proper approach for interpreting the concept of habitual residence under the CLRA . The only approach supported by the text, context, and purpose of s. 22(2) is the parental intention approach. It is the only approach that aligns with the legislature’s wording of the provision. It is the only approach that provides certainty and predictability in a part of a statute that is aimed, among other things, at preventing the wrongful removal of children. And it is the approach that should have been adopted by the courts below in this case.

100Had the motion judge used the correct lens to analyze where the parties’ child, M, was habitually resident, it would have been clear that the child’s habitual residence was in Oman, not Ontario. This was the last place that M and his family lived with a settled intention to reside there.

101I would not apply my colleague’s approach, and would therefore have allowed the appeal and remitted this matter to the motion judge to determine whether to return M to Oman under s. 40 of the CLRA .

II. Background and Judicial History

102## Dissenting Reasons: Background and Judicial History

The parties met in 2014 in Malaysia. Throughout the course of their relationship, Ms. Mehralian and Mr. Dunmore moved and travelled often. They were married in Japan on June 26, 2015, then moved to the United Arab Emirates together in 2016. After a period of separation in 2017, the parties reconciled in 2018 and began living in Oman. The series of international moves throughout the relationship was motivated by Mr. Dunmore’s career. He worked as an international arbitration lawyer and was the breadwinner of the family.

103The parties travelled to Canada in March 2020 so that Mr. Dunmore could write the Ontario bar exam. According to Mr. Dunmore, he did this because it would increase his profile and help him get contracts from Canadian companies operating in the Middle East. Notably, he is also a member of the bars of Australia, New York, and England and Wales. During the same trip, the parties also planned to visit Mr. Dunmore’s family in Essex County, Ontario. They planned to return to Oman in April 2020.

104Then the COVID‑19 pandemic hit. The bar exam was cancelled and the parties’ return to Oman became impossible. They instead moved in with Mr. Dunmore’s parents. Mr. Dunmore worked remotely for a law firm in Qatar from July to December 2020. In December 2020, the parties’ child, M, was born in Ontario.

105Mr. Dunmore signed a contract with a new employer in Oman on January 5, 2021. The parties finally returned to Oman, along with M, on January 23, 2021. They were religiously married in Oman at Ms. Mehralian’s request on February 20, 2021. Mr. Dunmore’s employment at the new Omani firm ended on March 7, 2021.

106Mr. Dunmore signed an employment contract in Ontario that was scheduled to commence on April 5, 2021. It was a fixed‑term contract, which was to terminate on August 31, 2022, unless otherwise terminated under its provisions. On April 4, 2021, the parties came back to Ontario and, with M, began living in an apartment on Eglinton Avenue in Toronto.

107Mr. Dunmore continued to look for work in the Middle East after signing the Ontario employment contract. In his affidavit sworn on June 21, 2021, in the Ontario Superior Court, he stated that he had received an offer to work at a Dubai firm on April 1, 2021, and had accepted it on April 25, 2021. In his viva voce evidence, he clarified that he had accepted the offer orally before coming to Toronto but had signed the letter in late April. In any event, it is clear from the email exchange between Mr. Dunmore and the Dubai firm that he sent the executed contract on April 27, 2021.

108On May 30, 2021, police responded to an allegation of domestic violence at the parties’ newly purchased chalet in Quebec. The parties separated the same day. Mr. Dunmore moved to the United Arab Emirates in July 2021 and worked there until November 2021, then started a new job in Oman in March 2022.

109Mr. Dunmore commenced proceedings in the Ontario Court of Justice on June 2, 2021. He brought a motion asking the court to order that M be placed in his care or that M reside with each parent equally. In his materials, he alleged that Ontario courts did not have jurisdiction. Ultimately, Mr. Dunmore withdrew his claims in the Ontario Court of Justice after telling Ms. Mehralian, through counsel, that he would do so. He commenced proceedings in Oman instead on June 17, 2021, seeking a divorce and custody of M. One day later, on June 18, 2021, Ms. Mehralian commenced proceedings in the Ontario Superior Court of Justice, seeking a divorce, corollary relief, and equalization of property.

110In December 2021, Mr. Dunmore travelled to Oman and attended before a notary to have the parties’ Islamic divorce recognized. The divorce certificate dated February 27, 2022, acknowledges this. With respect to the custody proceedings in Oman, the Court of First Instance in Muscat issued a judgment on November 16, 2021, finding that it did not have jurisdiction to hear the dispute. That decision was reversed by the Omani Court of Appeal on March 7, 2022. In subsequent litigation in which both parties fully participated, the Omani courts found that the parties had been validly divorced according to the law of Oman and awarded primary custody of M to Ms. Mehralian.

111After a series of appearances in 2022 and early 2023, Myers J. of the Ontario Superior Court issued a decision recognizing the parties’ Omani divorce ( 2023 ONSC 1044 , 88 R.F.L. (8th) 207). Then the motion judge, Brownstone J., dealt with the motion initially made by Mr. Dunmore in November 2021, in the proceedings initiated by Ms. Mehralian, seeking the return of M from Ontario to Oman. She also dealt with a cross‑motion by Ms. Mehralian seeking an order that Ontario had jurisdiction to determine parenting time and decision‑making responsibility for M. The motion judge dismissed Mr. Dunmore’s motion and granted Ms. Mehralian’s cross‑motion, finding that Ontario had jurisdiction to determine parenting time and decision‑making responsibility for M ( 2023 ONSC 2616 ). The motion judge’s decision, which will be addressed in greater detail when I apply the parental intention approach to the facts of this case, found that Ontario had jurisdiction on the basis that M was habitually resident in Ontario under s. 22(1) (a) of the CLRA . In the alternative, she would have found that the criteria in s. 22(1) (b) were satisfied, such that the court could still exercise its jurisdiction on the parenting matter.

112The Court of Appeal for Ontario affirmed the decisions of both Myers J. and Brownstone J. ( 2023 ONCA 806 , 94 R.F.L. (8th) 255). However, before this Court, only the decision about whether Ontario has jurisdiction is under appeal.

113The task of this Court is to determine whether the motion judge’s approach to determining habitual residence under s. 22 of the CLRA was the correct one. The motion judge’s analysis of whether M was habitually resident in Ontario proceeded on the basis that the legislative definition was clear and “d[id] not require the court to find a settled intention” by the parties to reside there (para. 44).

114I agree with the motion judge that the legislative definition of “habitual residence” is determinative of the issue. However, contrary to her, and as I explain below, I find that the statutory language requires this Court to determine habitual residence using the parental intention approach. Given that the motion judge failed to conduct her analysis of habitual residence through this parental intention lens, I would not give deference to her conclusions on this point. On my interpretation of the evidence, M was habitually resident in Oman at the commencement of the application. Moreover, in the alternative, the requirements in s. 22(1) (b) of the CLRA are not satisfied. Ontario therefore does not have jurisdiction in this matter.

III. Analysis

A. The Proper Framework for Determining Habitual Residence Incorporates the Parental Intention Approach

115## Dissenting Reasons: Analysis

The modern approach to statutory interpretation requires that the words of a provision be interpreted “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act, and the intention of [the legislature]” ( Rizzo & Rizzo Shoes Ltd. (Re) , 1998 CanLII 837 (SCC) , [1998] 1 S.C.R. 27, at para. 21 , quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). I will first examine the ordinary meaning of the definition of “habitual residence” in s. 22(2) of the CLRA , and then its purpose and context.

(1) Ordinary Meaning of Section 22(2) of the CLRA

116### Ordinary Meaning of Section 22(2) of the CLRA

The ordinary meaning of s. 22(2) is consistent with a parental intention approach to determining a child’s habitual residence. Section 22(1)(a) states that a court shall only exercise jurisdiction to make a parenting or contact order with respect to a child if the child is “habitually resident in Ontario at the commencement of the application for the order”. If the child is not habitually resident in Ontario at the commencement of the application, s. 22(1) (b) provides alternative grounds for assuming jurisdiction. This provision is resorted to only where habitual residence is not already made out.

117The statutory definition of “habitual residence” at the heart of this appeal is set out as follows in s. 22(2):

(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:

1. With both parents.

2. 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.

3. With a person other than a parent on a permanent basis for a significant period of time.

118My colleague concludes that nothing in the text of the provision indicates that “the ordinary meaning of ‘resided’ is displaced by a concept focused around shared parental intention” (para. 53). I cannot agree. In my view, this definition of “habitual residence” expressly incorporates parental intention through s. 22(2) 2. This is because the section requires the consent or acquiescence of one parent to the child’s residence in another country or province with the other parent, when the parents are living separate and apart, in order for the child’s habitual residence to be altered. If other factors related to the best interests of the child were relevant, then consent or acquiescence would not be a clear and explicit requirement.

119If it were not clear enough from the words of s. 22(2) that parental intention is central to the habitual residence analysis, consent and acquiescence are also mentioned in s. 22(3) :

(3) The removal or withholding of a child without the consent of all persons having decision‑making responsibility with respect to 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.

120The removal of a child from a country by one parent cannot alter their habitual residence unless the other parent agrees to the removal. Indeed, s. 22(3) places mutual parental intention at the heart of the habitual residence analysis by making parental consent a prerequisite to modifying a child’s habitual residence. Contrary to my colleague’s assertion at para. 53 of her reasons, the fact that consent is not also mentioned in s. 22(2) 1, which sets out the enumerated circumstance applicable to this case, does not mean that it is not a relevant consideration. Indeed, it would make little sense for the legislature to specify that a child is habitually resident in the last place where the child resided with both parents, with the consent of both parents. It is implicit that both parents must consent to reside in a particular place, and s. 22(3) ensures that one parent’s unilateral removal of a child from that place will not alter the child’s habitual residence without agreement.

121Despite the legislature’s clear incorporation of parental intention into the definition of “habitual residence”, my colleague instead fixates on the meaning of “resided” in order to introduce a non‑exhaustive set of criteria for determining a child’s habitual residence. No requirements other than the parents’ intentions or the child’s residence are imposed by the statute. There is no textual indication that other factors should be taken into account, such that any circumstances deemed relevant by a court could be properly considered in the analysis. The statute sets out exhaustive criteria, with no room for a court to expand them further. In light of the explicit statutory definition provided by the legislature, I fail to understand how my colleague can import an approach that allows a court to look at any other consideration that it deems relevant.

122I cannot agree that the legislature intended these non‑exhaustive factors to be considered as part of the analysis purely because it used the word “resided”. If the legislature’s intention was to import a non‑exhaustive list of factors into the definition, this begs the question of why explicit language to that effect was not included in the statutory definition.

123My colleague further states that “[p]arents cannot be allowed to contract out of the ordinary meaning of ‘resided’ used by the legislature” and that “[t]he legislature directs us to where the child actually resided, not where the parents agreed the child would reside” (para. 56). To the contrary, my reading is that the legislature expressly directs courts to consider whether both parents have consented or acquiesced to a child’s removal from a jurisdiction. Concluding otherwise flies in the face of the clear intention to incorporate joint parental decisions into the analysis through ss. 22(2) 2 and 22(3). I fail to understand how the shared parental intention approach improperly treats children as “passive recipients of their parents’ decisions” when these provisions explicitly require both parents to consent to a child’s residence in a particular place (para. 59, citing In re LC (Children) , [2014] UKSC 1 , [2014] A.C. 1038 , at para. 87 , per Lady Hale, concurring). Insofar as the parental intention analysis makes children “passive recipients” of their parents’ choices, it does so in conformity with the express, codified instructions of the legislature. Moreover, the “better view” is not necessarily that children have “a part to play in their own lives” ( ibid. ). This view has to be adjusted according to the age of the child. In the instant case, for example, M was just under six months old when Ms. Mehralian filed her application — far too young to make decisions independently.

124Furthermore, the term “habitual residence” must also be considered with the rest of the language used in s. 22 in mind. The first requirement of s. 22(1) (b) is that the child be “physically present in Ontario at the commencement of the application for the order”. Where the legislature has chosen to use different terms in a single piece of legislation, it is presumed to have done so intentionally in order to indicate different meanings ( Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, at para. 81 ). I therefore agree with my colleague that determining a child’s habitual residence must go further than examining where the child was physically located at the commencement of the application, though we differ on the effect of this interpretation.

125In my view, a child who is staying in a certain place temporarily, and whose parents have no joint intention to stay there, cannot be found habitually resident in that temporary place. Habitual residence is not only the last place where the parties resided temporarily. This is true even when the family is paying to stay in a particular place or working there.

126The fact that s. 22(2) 3 establishes a child’s habitual residence in the place where they reside “[w]ith a person other than a parent on a permanent basis for a significant period of time ” further buttresses this point. This wording suggests that the duration of the stay is not determinative of residence — to be habitually resident under s. 22(2) 3, the child must both reside with a third person and do so for a significant period of time . This latter requirement applies only where the child is residing with a person other than their parents. Residing for a “significant period of time” is not a requirement in the event that the child resides “[w]ith both parents” or, “[i]f the parents are living separate and apart, with one parent”. In my view, this wording accords with the parental intention approach, as it demonstrates that the inquiry into whether a child “resided” somewhere is not focused on the length of time they spend in that place or their ties to that jurisdiction. The question of residence is separate from this and is determined by a settled parental intention to reside there.

127Furthermore, adopting my colleague’s approach would make several of the factors for determining habitual residence duplicative of considerations included in other parts of the scheme. Section 22(1) (b) already lists many other factors for grounding jurisdiction where habitual residence is not made out, including that substantial evidence concerning the best interests of the child is available in Ontario and that the child has a real and substantial connection with Ontario. If either of these factors were relevant to the habitual residence analysis, the legislature would have made express reference to them in s. 22(2) , just like it did in s. 22(1) (b). In the absence of language to this effect, it makes little sense to conclude that the same factors must be considered twice: first under s. 22(2) and then under s. 22(1) (b) in the alternative.

128The wording of the statute already makes it perfectly clear that the parental intention approach is the correct one. This was the conclusion reached by the Court of Appeal for British Columbia in Kong v. Song , 2019 BCCA 84 , 21 B.C.L.R. (6th) 284, where the applicable provisions are nearly identical to the CLRA (see Family Law Act , S.B.C. 2011, c. 25, ss. 72 and 74 ). Moreover, the purpose and context of the CLRA lend further credence to this interpretation. These considerations are interrelated in this case, and I turn to them now.

(2) Purpose of Part III of the CLRA

129### Purpose of Part III of the CLRA

Section 22(2) is located in Part III of the CLRA . The purposes of Part III are set out in s. 19:

(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.

130The purposes in s. 19(b) to (d) can best be fulfilled through the parental intention approach. It ensures that children are not taken out of the jurisdiction, because it requires a court’s jurisdiction to be decided according to the last place that the parents had a settled intention to reside together with the child. There can be no unilateral changes of jurisdiction by one parent, without the consent or acquiescence of the other.

131The parental intention approach would recognize that the last place where there was a settled intention to reside is the proper forum for determinations to be made as to decision‑making responsibility, parenting time, or contact with respect to a child, as it is the jurisdiction to which the parties mutually agreed to subject themselves and their child. This will necessarily be the jurisdiction to which the child has a “closer connection”.

132Furthermore, the purpose in s. 19 (c) is frustrated by my colleague’s approach. If a parent believes that they can ground a court’s jurisdiction in a place that is more favourable to them despite a lack of consent from the other parent, there is an incentive to do so. The parental intention approach would prevent this because of its requirement of mutual consent of the parents.

133In assessing the purpose in s. 19 (a) — advancing decision‑making that is in line with the best interests of the child — we must also consider the internal context of the rest of the CLRA . This purpose is not fulfilled through s. 22(2) alone; this provision exists alongside other provisions that all collectively further the goals of the CLRA , as I will now explain.

(3) Context Surrounding Section 22(2) of the CLRA

(a) Internal Context of the CLRA

134### Context Surrounding Section 22(2) of the CLRA

As noted above, the purposes of Part III of the CLRA include “ensur[ing] 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 ”. At first glance, one might therefore think that the best interests of the child must be a consideration in determining habitual residence under s. 22(2) , along with the rest of Part III. But this is not the case.

135Just because an overall purpose of Part III of the CLRA requires courts to consider the best interests of children does not mean that these best interests must be considered in every decision made under this part. The rest of the scheme of Part III already takes into account the best interests of the child as a whole. Though s. 19 says that decisions must be made “on the basis of the best interests of the children”, this does not mean that each individual subsection or part of the analysis must include a direct consideration of best interests. Section 22(1)(a) is only one “piece of the puzzle”, so to speak, and it is a provision dealing with whether a court should assume jurisdiction , not with whether a child should be returned to another country. Other provisions can perform that role.

136In particular, s. 19 (a) of the CLRA states that the best interests of children should be considered by courts in making decisions about “decision‑making responsibility, parenting time, contact and guardianship with respect to children”. Notably missing from this list are questions of jurisdiction. Those ultimate substantive questions are much different than the issue of whether a court has jurisdiction to decide them in the first place. Sections 22(1) and 22(2) answer a preliminary question about jurisdiction rather than providing for the best interests analysis that is reserved for other sections.

137Section 22(1)(b) still allows a court to exercise jurisdiction where a child is not “habitually resident” in Ontario. This provision requires that “substantial evidence concerning the best interests of the child [be] available in Ontario” ( s. 22(1) (b)(ii)) and that the child have “a real and substantial connection with Ontario” ( s. 22(1) (b)(v)), among other things. Section 22(1) (b) can thus be considered a catch‑all provision that incorporates the purposes set out in s. 19 even where habitual residence is not made out under s. 22(2) . In other words, s. 22(1) (a) and the definition in s. 22(2) do not have to do all of the work in fulfilling these purposes. Indeed, it is unclear why the legislature would explicitly mention the best interests of the child in s. 22(1) (b) if these interests were already an implicit consideration throughout Part III.

138The existence of both s. 22(1)(a) and s. 22(1)(b) as bases for assuming jurisdiction lends further support to this point. Why would we import external considerations about the child’s best interests and additional factors into the definition of “habitual residence” when the legislature clearly intended that they be taken into account under s. 22(1) (b)? That would cause substantial overlap and redundancy. These provisions establish different grounds for assuming jurisdiction, and this distinction should be given effect.

139Section 22(1)(a) can be interpreted as providing a simpler and quicker way for a court to assume jurisdiction in certain circumstances, absent which a more complicated analysis can be carried out under s. 22(1)(b).

140I note that my colleague’s approach would duplicate some of the analysis that is already conducted under s. 22(1)(b)(ii) and (v) — the requirements that “substantial evidence concerning the best interests of the child [be] available in Ontario” and that the child have “a real and substantial connection with Ontario”. Though her approach asks courts to consider the ultimate question of where the child “resided” (para. 48), the analysis of this question will necessarily focus on the ties between the child and Ontario and will be duplicative of the analysis of the evidence concerning the best interests of the child and their connection to Ontario. Where the legislature intends courts to look at the factual ties between the child and Ontario, it says so expressly. There is no need to turn the assessment under s. 22(1)(a) into a far more complicated one than the alternative under s. 22(1)(b).

141Furthermore, we can also look to s. 40 of the CLRA , which states that a court may order that a child be returned to another place. I agree with Fairburn A.C.J.O.’s comment in Zafar v. Azeem , 2024 ONCA 15 , 97 R.F.L. (8th) 3, that this provision gives a court “the discretionary power to order the return of a child, although it is not mandatory” (para. 52). While I disagree with her conclusion that the hybrid approach should be imported into the non‑ Hague Convention context, I agree that the question of whether or not to return a child can be considered on the basis of the child’s best interests (paras. 90‑92). In light of s. 40 and s. 22(1) (b), there is ample space to consider the child’s best interests outside of s. 22(2) .

142Moreover, author Allan Q. Shipley identifies the different considerations that apply throughout these provisions:

There are at least three instances in which the court may deal with a child who is not habitually resident in Ontario. First, s. 22(1)( b ) permits a court to exercise jurisdiction where, among other things, the child has a real and substantial connection with Ontario and, on the balance of convenience, it is appropriate for jurisdiction to be exercised here. Second, under s. 23 an Ontario court may exercise jurisdiction if the court is satisfied that the child would suffer serious harm. This provision was based on s. 4 of the Canadian Uniform Extra-provincial Custody Orders Enforcement Act, and a similar provision is contained in Art. 13 of the Hague Convention. The “serious harm” of the test should be strictly construed. A strict test is all the more important in light of the Hague Convention and its “grave risk” standard. The more easily our courts find “serious harm” as a means of assuming jurisdiction over out‑of‑province children, the more easily other territories will find it to assume jurisdiction over children kidnapped from Ontario. We must insist on strict standards here in order to protect our own children elsewhere.

A third instance in which an Ontario court may make an order in respect of a non‑resident child is set out in s. 41, which gives the court power to make an interim order. If the court does not have jurisdiction to make a custody order because the child is not habitually resident in Ontario, it must still have some powers to deal with children. Otherwise, the kidnapper could choose to stay here indefinitely with his de facto custody. Under s. 41 a court has the power: (1) to make an interim order (2) to stay an application on the condition that an application be brought in an appropriate extra-provincial jurisdiction, or (3) order the return of the child to an appropriate jurisdiction and order payment of the cost of reasonable travel and other expenses of the child and any parties or witnesses.

This is an important parallel provision to the Hague Convention, where Art. 8 requires the court to order return of a child who has been wrongfully removed. However, this provision differs in the options it provides for the applicant. It also gives the court a better opportunity to safeguard the interest of the child on an interim basis. [Emphasis added; footnotes omitted.]

(“Custody Law Reform in Ontario: The Children’s Law Reform Act ”, in B. Landau, ed., Children’s Rights in the Practice of Family Law (1986), 153, at pp. 177‑78)

143I accept my colleague’s concerns about the impacts of family violence. However, I reiterate that s. 22(2) is not meant to do all of the work in protecting a child’s best interests. If there are circumstances of family violence, s. 23 expressly contemplates that, despite ss. 22 and 41, a court may exercise jurisdiction if the child is in Ontario and the court “is satisfied that the child would, on the balance of probabilities, suffer serious harm” if they remain with the person legally entitled to decision‑making responsibility, are returned to a person legally entitled to decision‑making responsibility, or are removed from Ontario. As Fairburn A.C.J.O. held in Zafar , a risk of harm to a primary caregiver can constitute a risk of harm to a child (para. 84).

144Moreover, the effects of family violence can also be considered as part of a court’s discretionary decision to order or not to order the return of a child to another jurisdiction. Section 22(1) is not meant to encapsulate any and all considerations about what the best course of action is in making an order under Part III of the CLRA .

(b) External Context: the CLRA Compared to the Hague Convention

145### External Context: the CLRA Compared to the Hague Convention

The Office of the Children’s Lawyer submits that there is no rational basis for maintaining competing interpretations of habitual residence based on Hague Convention signatory status. However, in my view, there is a clear basis for doing so: habitual residence is defined in the CLRA for non‑ Hague Convention cases, while no definition is given in the Hague Convention .

146In Balev , our Court decided that the hybrid approach was appropriate in the particular international legal context of the Hague Convention . The majority in Balev held that the hybrid approach should be adopted because of the principle of harmonization and because this interpretation best conformed to the text, structure, and purpose of the Hague Convention . They also found that the hybrid approach best fulfilled the goal of prompt return of abducted children.

147Harmonization is not as much of an issue here. It is true that harmonization would be beneficial in the sense that the standard would be uniform in Hague Convention and non‑ Hague Convention cases. But these two categories of cases are different: one deals with return to a country that is a Hague Convention signatory, and the other does not. I would also add that, because not all provinces and territories have adopted a definition of “habitual residence” akin to that in the CLRA , using my colleague’s approach would not necessarily harmonize the standard across the country; it would depend on the province or territory.

148Most obviously, habitual residence is left undefined in the Hague Convention but not in the CLRA . There is an express definition in s. 22(2) of the CLRA that was enacted by the legislature.

149My colleague herself acknowledges that the non‑ Hague Convention context is different in a number of ways. She notes that there are several grounds for assuming jurisdiction under the CLRA , unlike in the Hague Convention context where habitual residence is a prerequisite for the Hague Convention to be engaged (para. 35). A court’s discretionary power under the CLRA is distinct from the Hague Convention ’s mandatory requirement that a court order the return of a child to their habitual residence following a determination of wrongful removal (para. 36). The CLRA incorporates an express definition of “habitual residence”, while the Hague Convention leaves the term undefined (para. 38). As a result of these differences, my colleague expressly states that the hybrid definition of “habitually resident” discussed in Balev “does not apply directly to s. 22 ” (para. 49) and that determining where a child resided is not the same as an inquiry into where it is in the best interests of the child to live (para. 48).

150Despite this, the ultimate test adopted by my colleague seems almost identical to the hybrid approach from Balev . In that case, a majority of our Court adopted the hybrid approach to determining habitual residence under Article 3 of the Hague Convention . The hybrid approach requires a court to look to all relevant considerations arising from the facts of the case in order to determine a child’s habitual residence. No single factor dominates the analysis. Parental intention may be important, but there is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child ( Balev , at para. 46 ).

151In comparison, my colleague outlines a test that is “focused on the child’s life and circumstances” (para. 62) — one that requires no physical presence or permanence of residence. She advises that courts should look to “all relevant links and circumstances”, with no exhaustive criteria articulated (para. 68). Indeed, for that proposition, she cites Zafar , in which Fairburn A.C.J.O. ruled that the hybrid approach from Balev applied . She further notes that, “[a]s in Balev , 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” (para. 69). This is hardly an entirely “distinct exercise” compared to the one in Balev (majority reasons, at para. 74).

152Though my colleague claims not to be importing the hybrid approach, she seems to be doing exactly that. In my view, this is a convenient way to sidestep the fact that the hybrid approach as outlined in Balev is clearly contrary to the text of s. 22(2) and (3). Our Court wrote in Balev that, under the Hague Convention hybrid approach, “there is no ‘rule’ that the actions of one parent cannot unilaterally change the habitual residence of a child” and specifically noted that such a rule would “detrac[t] from the task of the finder of fact” (para. 46). In direct contrast, s. 22(3) of the CLRA explicitly states that “[t]he removal or withholding of a child without the consent of all persons having decision‑making responsibility with respect to the child does not alter the habitual residence of the child”, with certain exceptions.

153Section 22(3) is entirely at odds with a hybrid approach and, indeed, with my colleague’s very similar analysis. In light of this, any attempt to adopt a hybrid approach clearly runs contrary to the intent of the legislature.

(4) Conclusion on Statutory Interpretation

154### Conclusion on Statutory Interpretation

Ultimately, the main points that emerge from a consideration of the text, context, and purpose of s. 22 of the CLRA are as follows: the text of s. 22(2) and (3) clearly captures parental intention, and habitual residence must involve more than just physical presence in a particular location, given the text of s. 22(1)(b).

155The purpose of s. 22(2) is to determine a court’s jurisdiction, as part of a framework of other provisions that collectively advance the best interests of children and prevent their abduction. The parental intention approach best fulfills these objectives by preventing a child’s habitual residence from being determined where the child is taken to a country by one parent without the consent or acquiescence of the other.

156The hybrid approach adopted in the Hague Convention context cannot be transposed to s. 22(2) . Habitual residence is defined in the CLRA , unlike in the Hague Convention . Moreover, neither the hybrid approach from Balev nor my colleague’s approach contains a rule that the actions of one parent cannot unilaterally change the habitual residence of a child. This possibility is expressly foreclosed by s. 22(3) .

157The only appropriate approach left that respects the wording of the statute is the parental intention approach. Though I recognize that Fairburn A.C.J.O. recently reached the opposite result in Zafar , respectfully, she did so merely because, according to her, there was no reason why the hybrid approach should not apply in the non‑ Hague Convention context — a premise that I firmly reject above.

158Before applying the parental intention approach to this case, I wish to address one more point raised by my colleague. She stresses that 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” (para. 76). She rejects the parental intention approach partially on the basis that it results in detailed and conflicting evidence as to the parties’ intentions (para. 58), as opposed to the “straightforward question of where the child was residing” (para. 77).

159I do not see how the place where a child resides will ever be a straightforward question when this approach allows any relevant links and circumstances to be taken into account. Rather than focusing the evidence on intention alone, my colleague’s approach will incentivize parents to submit any and all evidence relating to the child’s connection to a particular jurisdiction, in addition to information about the parties’ intentions. Such an all‑encompassing approach will naturally invite “the production of an undue volume of documentary evidence” (majority reasons, at para. 75).

B. The Motion Judge Erred in Failing to Find That Ontario Had Jurisdiction Over M

160### The Motion Judge Erred in Failing to Find That Ontario Had Jurisdiction Over M

The motion judge’s findings of fact relevant to the issue of habitual residence are set out at para. 76 of her reasons:

[Mr. Dunmore’s] employment changed often. These changes regularly required them to move. Once M was born, this lifestyle became more arduous for [Ms. Mehralian]. Their relationship, always volatile, became even more strained. [Mr. Dunmore] would generally prefer to live in the Middle East if he had work there, in any one of a number of countries. After moving their one‑month‑old child to Oman and experiencing difficulties in the transition, and feeling that it was very difficult for M, [Ms. Mehralian] did not wish to continue their peripatetic life. She was willing to stay in Oman and suggested [Mr. Dunmore] sign his employer’s contract. Had they stayed in Oman she may well have been willing to make the short move from there to Dubai. However, when [Mr. Dunmore] chose not to sign the contract with the Omani firm in March, 2021 and stated that he would rather be in Canada, the couple decided to move to Canada. [Mr. Dunmore] voluntarily reached out to a Toronto firm about employment. The parties made arrangements to move here. They flew to Toronto on one-way tickets. They rented an apartment and considered moving in to [Mr. Dunmore’s] previously purchased condominium depending on the timing of the rental and the completion of the condominium construction. They purchased furniture. They quarantined in their apartment. They considered moving their cats here. [Mr. Dunmore] got an OHIP card. The potential duration of [Mr. Dunmore’s] employment with Margie Strub is not at all clear from the contract. There was no reason for it to end on the day [Mr. Dunmore] quit. They lived together as a family at the apartment they rented on Eglinton Ave. in Toronto. Although [Mr. Dunmore] preferred living in the Middle East, he understood that as the family’s breadwinner, he had to go where the work was. Canada had been a back‑up plan for him as recently as December, 2020. He had applied for jobs in Canada in 2017 and again in 2020. He freely applied to a job in Canada once he decided he did not want to sign the Omani contract with the non‑compete clause, saying he would “rather be in Canada” than sign the contract with the clause he found objectionable. The fact that [Mr. Dunmore] wished to return to the Middle East to work in Dubai does not change these facts.

161A child’s habitual residence is a question of mixed fact and law. Therefore, the motion judge’s findings cannot be disturbed on appeal unless Mr. Dunmore can identify an extricable legal error or a palpable and overriding error ( Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, at paras. 26 and 29 ).

162In my view, the motion judge committed an extricable legal error in determining that M was habitually resident in Ontario. This is because she thought that finding a settled intention to reside in a particular place was “not require[d]” in order to determine a child’s habitual residence (para. 44). As a result of this, she did not view the facts through the proper lens. Our Court thus owes no deference to her conclusion that M was habitually resident in Ontario at the commencement of the application. I will therefore conduct the habitual residence analysis afresh, applying the settled parental intention approach.

(1) Under Section 22(2), M Was Habitually Resident in Oman, Not Ontario

163### Under Section 22(2), M Was Habitually Resident in Oman, Not Ontario

In my view, the last place there was a shared parental intention to reside was Oman, not Ontario.

164M was born in Ontario on December 2020. The parties returned to Oman 24 days after M’s birth and resided in Oman until April 4, 2021. At the commencement of the application, they had spent a total of 71 days in Oman and 99 days in Ontario.

165At the time of separation, M had barely spent more time in Ontario than in Oman. Less than a month makes little difference and cannot be determinative. Given how young he was, this is not enough to show that his habitual residence was in Ontario. This child was five months old and had spent almost half of his life in another country. The question of whether M remained in Ontario for a “significant period of time” would be relevant only if he were already found to reside with a third person under s. 22(2) 3, but not otherwise. That is not the case here.

166There is also not enough in the record to suggest that the stay in Ontario was intended to be more than temporary. In general, there is clear evidence that the parties moved very often. Mr. Dunmore was the breadwinner, and the family often moved to facilitate his career. This pattern was beneficial for the family.

167Staying in a particular jurisdiction for some period of time does not in itself mean that the parties mutually intended to reside there rather than visit temporarily. Mr. Dunmore continued to look for work in the Middle East while staying in Toronto. He accepted an offer to rejoin his former law firm at its Dubai office at the end of April 2021. He signed a written contract from the firm in Dubai on April 25, 2021, and returned it two days later. His work was set to commence on June 1, 2021. This clearly demonstrates that his work in Ontario was temporary . My colleague’s approach recognizes that the concept of residence excludes inherently transient situations, like vacationing, “appreciated in light of the full context of each individual case” (para. 65). Indeed, the fact that the parties went to Toronto while Mr. Dunmore continued to look for work in the Middle East — where they were truly resident — lends important context to the analysis.

168Mr. Dunmore’s employment contract with Margie Strub in Ontario was open‑ended. It was set to expire on August 31, 2022. While the motion judge stated that there was “no reason for it to end on the day [Mr. Dunmore] quit”, there was also no requirement that he stay for a specific period of time. One cannot draw from the fact that the contract could be extended the inference that it would be extended or that this was the intention of the parties. We know only that it was a temporary, fixed‑term contract.

169Furthermore, the fact that the parties rented an apartment in Toronto is of no moment. They were there temporarily, and Mr. Dunmore was actively seeking employment in the Middle East. They needed somewhere to live while they were in Ontario. The parties’ cats did not live with them. The motion judge mentions that the couple “considered moving their cats here” (para. 76). As mentioned, the analysis must look at more than whether the child is living in a particular place or is “physically present” in Ontario, the requirement set out in s. 22(1)(b)(i).

170Overall, the fact that the parties lived in Ontario for a period of time does not mean that they had a settled intention to live there permanently. The last time they had a settled intention to stay in one place was when they lived in Oman, prior to travelling to Toronto on April 4, 2021. Mr. Dunmore was actively seeking employment in the Middle East while temporarily in Toronto and was set to resume work there on June 1, 2021.

(2) In the Alternative, the Requirements in Section 22(1)(b) Are Not Satisfied in This Case

171### In the Alternative, the Requirements in Section 22(1)(b) Are Not Satisfied in This Case

Section 22(1)(b) provides an alternate basis for a court to exercise jurisdiction in the event that a child’s habitual residence is not in Ontario. All of the requirements in s. 22(1)(b)(i) to (vi) must be met for the court to assume jurisdiction. Two of these requirements are not met in the instant case.

(a) The Requirement in Section 22(1)(b)(iii) Is Not Satisfied

[172] Section 22(1)(b)(iii) requires that “no application respecting decision‑making responsibility, parenting time or contact with respect to the child [be] pending before an extra‑provincial tribunal in another place where the child is habitually resident”.

The Requirement in Section 22(1)(b)(iii) Is Not Satisfied

As I have found above that M’s habitual residence was in Oman, this criterion will not be satisfied if any such application was pending in Oman at the time that the Superior Court proceedings were initiated.

173First and foremost, I agree that the proper time frame for assessing whether an extraterritorial claim is “pending” is the window of time when an applicant’s application is brought in the Ontario court, not the time of argument or judgment (see, e.g., Ojeikere v. Ojeikere , 2018 ONCA 372 , 140 O.R. (3d) 561, at para. 31 ; E. (H.) v. M. (M.) , 2015 ONCA 813 , 393 D.L.R. (4th) 267, at para. 110 ; Nichols v. Nichols , 1995 CanLII 6241 (Ont. C.J. (Prov. Div.)), at para. 12; Aldush v. Alani , 2022 ONSC 1536 , 74 R.F.L. (8th) 113, at para. 91 ).

174The appellant commenced proceedings in the Ontario Court of Justice on June 2, 2021. He asked that court to order that M be placed in his care or, in the alternative, to order that M reside with each parent equally. Weagant Prov. Ct. J. of the Ontario Court of Justice issued an endorsement on June 11, 2021. Weagant Prov. Ct. J. noted that, although the appellant’s materials on the urgent motion suggested that Ontario did not have jurisdiction, he was of the view that Ontario did have jurisdiction. On June 16, 2021, the appellant informed the respondent that he would withdraw his claims in the Ontario Court of Justice and would continue to object to Ontario being the appropriate forum. The motion judge concluded that the appellant had commenced proceedings in Oman seeking a divorce and custody of M on June 17, 2021, one day before the respondent commenced her application in the Superior Court (paras. 10‑11).

175The motion judge erred in law by concluding, on the basis of both the timing of the commencement of proceedings in Ontario and the fact that the Omani proceedings had been completed by the time of her decision, that the requirement in s. 22(1)(b)(iii) was satisfied (para. 82).

176First, as explained above, the status of the proceedings at the time the motion judge’s decision is released is not what should be considered in determining whether the criterion in s. 22(1)(b)(iii) is met. It does not matter that the proceedings were “no longer pending” at the time of the motion judge’s decision. The proceedings in Oman were pending at the time the respondent initiated her proceedings in Ontario, which was the only relevant time frame that the motion judge should have considered.

177Furthermore, the fact that the appellant initially launched proceedings in the Ontario Court of Justice is irrelevant, and the motion judge erred by relying on it. The appellant withdrew the Ontario Court of Justice proceedings on consent and contested jurisdiction in those proceedings and in the Superior Court proceedings. He cannot be faulted for this. There was therefore an application pending in Oman, a country in which M was habitually resident, at the time that the Superior Court proceedings were initiated.

(b) The Requirement in Section 22(1)(b)(vi) Is Not Satisfied

178### The Requirement in Section 22(1)(b)(vi) Is Not Satisfied

Furthermore, the last criterion of s. 22(1)(b) is also not satisfied. Section 22(1)(b)(vi) requires a court to find that, “on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario”.

179Sections 19 (b), 19(c) and 19(d) of the CLRA state that three of the purposes of Part III of the CLRA are (1) to ensure that Ontario courts 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; (2) to discourage the abduction of children; and (3) to provide for the recognition and enforcement of orders made outside Ontario that grant decision‑making responsibility, parenting time, or contact with respect to a child. These three purposes support the position that the final criterion is not satisfied.

180The motion judge relied on Solem v. Solem , 2013 ONSC 1097 , in which the Superior Court stated that “[w]here the independent evidence that will be of greatest assistance to the court is in another jurisdiction, the balance of convenience favours that jurisdiction” (para. 64). With respect, I find it difficult to conclude that the balance of convenience can favour exercising jurisdiction in Ontario where the province is not the child’s place of habitual residence and where the respondent has also fully attorned to the jurisdiction of a foreign court for custody‑related proceedings. This would cut against the purposes noted above of ensuring that Ontario courts refrain from exercising jurisdiction where it is more appropriate for a matter to be decided in a place with which a child has a closer connection and providing for the recognition and enforcement of orders made outside Ontario that grant decision‑making responsibility.

181This is not a case where habitual residence is established both in Ontario and in another jurisdiction. The child’s habitual residence was in Oman. At the time the proceedings were initiated, the child had barely spent more time in Ontario than in Oman. The respondent herself attorned to the jurisdiction of Oman and in fact succeeded in obtaining custody of M in those proceedings.

182I therefore find that, in the alternative, the requirements of s. 22(1)(b) are also not met.

IV. Conclusion

183## Dissenting Reasons: Conclusion

For the reasons given above, the parental intention approach must play a central role in determining habitual residence under s. 22(2) of the CLRA . When this approach is applied to the evidence in the record below, the natural result is that M’s habitual residence was in Oman, not Ontario.

184I would therefore have allowed the appeal and remitted this matter to the motion judge to determine whether to return M to Oman under s. 40 of the CLRA .