The court's majority said an approach that focuses on parents' shared intent is open to manipulation
A child is “habitually resident” in Ontario for the purpose of custody proceedings under Ontario’s Children’s Law Reform Act, even though one of their parents lives in Oman, the Supreme Court of Canada said in a split decision Friday.
The decision clarifies how to determine whether a child “resides” in a specific jurisdiction for the purposes of the CLRA, stating that the exercise is “factual and contextual.” However, the majority added that the exercise is not and must not become “a complex and costly one.”
Justice Sheilah Martin wrote the opinion for the majority. Justice Suzanne Côté was the lone dissenter.
The case involves a separated couple who married in Japan in 2015. The mother is an Iranian citizen and permanent resident of Canada, while the father is a Canadian citizen originally from Ontario.
The couple lived in Oman from 2018 to early 2020, when they travelled to Ontario. The COVID-19 pandemic prevented them from returning to Oman, and the couple’s son was born in Ontario the same year. The family later moved back to Oman, but returned to Ontario in the spring of 2021. The couple separated shortly after.
The father returned to Oman while the mother and child stayed in Ontario. The father initiated divorce and custody proceedings in Oman but lost custody rights to his wife. Meanwhile, the mother launched family law proceedings in Ontario.
The father then filed a motion with Ontario Superior Court, seeking to have his child returned to Oman and arguing that Ontario courts did not have the jurisdiction to determine parenting issues. A motion judge dismissed the motion, concluding that Ontario courts did have jurisdiction because the child “habitually resided” in Ontario for the purposes of the CLRA. The Ontario Court of Appeal agreed with the motion judge, and the father appealed to the SCC.
The high court dismissed the appeal in December but did not deliver its reasons until Friday.
Ontario courts have jurisdiction over a matter brought under the CLRA involving a child who “habitually resides” in the province. However, the law does not define “reside.”
According to the majority, the guiding principle for determining whether a child resides in a jurisdiction is whether the child is at home there, not whether the parents intended to settle there.
The majority stated that a child’s physical presence in a jurisdiction “is neither necessary nor sufficient to reside in that jurisdiction at that time.” The majority added that a child does not need to permanently live in a jurisdiction to establish habitual residence; that a child can reside in multiple jurisdictions at any given time; and that, in cases involving very young children, the ties of their caretakers may carry more weight in the analysis.
“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,” Martin wrote.
The justice added, “Courts asking where the child is at home should look to ‘all relevant links and circumstances.’” These include linguistic, cultural, educational, and social ties to a jurisdiction, as well as the presence of family and their reasons for being in that jurisdiction.
The majority said an approach to determining residency that focuses on parents’ shared intent is flawed and vulnerable to manipulation. In cases involving family violence, for example, one parent’s abusive behaviour “can undermine a victim’s autonomy, including the ability to freely express their intention,” Martin wrote.
“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,” Martin added. “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 her dissent, Côté said she would have allowed the father’s appeal. The justice rejected her colleagues’ interpretation of the CLRA, arguing that the parents’ intent must play a “central role” in determining a child’s habitual residence.
“The purpose of s. 22(2) [of the CLRA] 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 justice wrote. “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.”
In a joint statement provided to Canadian Lawyer on Friday, Michael Stangarone, Meghann Melito, and Tiffany Guo of MacDonald & Partners LLP, who represented the father in the case, said the court’s decision “provides much needed clarity and resolves the debate among the judiciary about how to determine a child’s habitual residence in an abduction case where the Hague Convention on International Child Abduction does not apply.
“The Supreme Court has reformulated the legal framework to apply in these high-stakes cases,” the lawyers said, adding the court has concluded that the analysis must focus on a child’s factual connections to a jurisdiction as well as the circumstances around their movement to and from the jurisdiction.
“In our view, this includes whether the child was taken from his or her home unilaterally and without the consent of the left-behind parent,” the lawyers said. “That is an important fact that must be considered and given weight by the court.”
Counsel for the mother did not respond to a request for comment.
