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In Dunmore v Mehralian, 2025 SCC 20 [Dunmore], the Supreme Court of Canada (“SCC”) provided an answer to the question: what does it mean for a child to be habitually resident in a place? (Dunmore, para 1). The question carries significant implications for the application of family law. When a child is found to be habitually resident of a particular jurisdiction, section 22 of the Children’s Law Reform Act RSO 1990, c C.12 [CLRA] allows an Ontario court to take jurisdiction to make a parenting or contact order (Dunmore, para 5).
Facts
In Dunmore, Mr. Dunmore, “the father,” challenged the jurisdiction of Ontario courts to make a parenting order requested by Ms. Mehralian, “the mother,” who was living in Ontario with their child. Mr. Dunmore sought the return of their child to Oman.
Mr. Dunmore, a Canadian citizen, and Ms. Mehralian, an Iranian citizen and permanent resident of Canada, lived in various jurisdictions together (Dunmore, paras 8-9). They lived together in Oman for almost 2 years, returned to Ontario, and had originally planned to return to Oman (Dunmore, paras 9-10). Their child was born in Ontario during the COVID-19 pandemic (Dunmore, paras 2, 10, 104). A year later, the family returned to Oman, but returned to Ontario a few months later (Dunmore, para 11) After police responded to an allegation of domestic violence (Dunmore, para 12), they separated shortly afterwards: the father returned to Oman, and the child and mother remained in Ontario (Dunmore, paras 2, 13).
The father commenced a proceeding in Oman, seeking a divorce and custody of their child (Dunmore, para 14). The mother then commenced family law proceedings in the Ontario Superior Court (Dunmore, para 15), and the father brought a motion in the Ontario Superior Court challenging the jurisdiction of Ontario courts to determine the parenting issues (Dunmore, paras 3, 16).
In order for an Ontario court to take jurisdiction and make a parenting order, a child must be found to be habitually resident in Ontario when the application is commenced (Dunmore, paras 10, 34). To determine this, a court analyzes where the child was residing at a prescribed time. Section 22(2) of the CLRA dictates that a child is a habitual resident in whichever of the three listed circumstances last occurred:
- the child resided with both parents
- the child resided with one parent under agreement, consent, acquiescence or court order
- the child resided with a person other than a parent “on a permanent basis for a significant period of time” (s. 22(2)). (para 40).
Additionally, 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 (Dunmore, para 41).
The father claimed that the motion judge was wrong to conclude that the child was habitually resident in Ontario (Dunmore, para 3) — he said he and Ms. Mehralian did not jointly intend to live in Ontario, and that habitual residence under section 22 of the CLRA must be appreciated in reference to joint parental intention (Dunmore, para 27). According to the father, the parents had a shared intention to live in Oman (Dunmore, para 81), and an Ontario court could therefore not take jurisdiction.
Judicial History
Ontario Superior Court of Justice
The motion judge dismissed the father’s motion, concluding that Ontario courts had jurisdiction (17) because the child was habitually resident in Ontario for the purposes of section 22(1)(a) of Ontario’s (CLRA) (Dunmore, paras 7, 18). The motion judge determined that the family was living in Ontario in the relevant period, which was when the child was residing with both parents (Dunmore, para 18).
Ontario Court of Appeal
The Ontario Court of Appeal agreed with the motion judge and dismissed the father’s appeal (26). The motion judge had accurately made a finding of fact that the parties decided to move to Toronto and were not merely temporarily visiting (Dunmore, para 24).
Issue
The issue before the SCC was whether the Superior Court properly took jurisdiction to make a parenting order on the grounds that the child was habitually resident in Ontario (Dunmore, paras 27, 30)
At the heart of this appeal is the meaning of “reside” in the habitual residence analysis.
Decision
All Justices but Côté J held that the appeal should be dismissed. Martin J, writing for the majority, held that the lower courts were right to dismiss Mr. Dunmore’s motion to have the child immediately returned to Oman, and had no basis to interfere with the motion judge’s finding (Dunmore, para 81).
The majority clarify that the relevant question, in determining whether a child was habitually resident in a place, is whether the child was at home there, not whether the parents had a settled intention to reside in that place. The majority determine that the child was habitually resident in Ontario when they last lived with both parents (Dunmore, paras 79-80).
At the core of this appeal was the meaning of “reside” for the purposes of section 22 of the CLRA (Dunmore, para 45). The majority emphasized that section 22 is animated by the purposes set out in Part III of the CLRA: a concern for the child’s best interest, avoiding jurisdictional overlap, discouraging abduction as alternative to due process, and the enforcement of orders (Dunmore, paras 33, 48).
The majority rejected the father’s claim that shared parental intention ought to guide the analysis of where the child resided. Notwithstanding the fact that the shared parental approach is complex and vulnerable to manipulation (Dunmore, paras 55, 57, citing Balev), the majority held that ascertaining shared parental intention gives undue priority to the subjective views of the parents. Instead, the approach required by section 22 must be fact-specific. In interpreting the meaning of “resides” courts must look at ordinary meaning – “resided” means whether a child was “at home” in a place (Dunmore, para 6).
The majority affirm that this approach, in looking at the social ties of a child and those taking care of them to a place (Dunmore, para 68), shine a light on the “concrete situation of the child” (Dunmore, para 58). In this child’s case, the father was a Canadian citizen, and the mother was a permanent resident, and both parents had extended family living in Ontario (Dunmore, para 87).
Côté J, dissenting, argued that a shared parental intention approach is supported by the text, context, and purpose of section 22(2) of the CLRA (Dunmore, para 99). She argued that when this approach is applied, the child’s habitual residence is found to be in Oman, not Ontario, as Oman was the last place in which the child lived where both parents had an intention to reside there (Dunmore, paras 100, 163).
First, Côté J argued that the ordinary meaning of section 22(2) is consistent with a shared parental intention approach. She claims that “habitual residence” already engages parental intention, as the second circumstance lists “consent, implied consent, or acquiescence” of the other parent (Dunmore, para 118). Because, according to Côté, the father had neither consented nor acquiesced to the child’s being in Ontario, the child cannot be said to have “resided” in Ontario (Dunmore, para 130).
Côté’s dissent emphasizes that habitual residence must involve more than physical presence (Dunmore, para 154). Moreover, she believes that extreme cases, for instance child abduction, can be better dealt with with a “shared parental intention” approach, while the majority’s approach permits one parent to unilaterally decide the habitual residence of a child.
Analysis
The Shared Parental Intention Approach
What the majority get right in their analysis is the resolute centering of the social ties of the child. The shared parental approach endorsed by Côté does not centre the concrete situation of the child. In asserting that there is no textual indication that any other factor beside parental intention, in particular a child’s intangible ties to a place, should be taken into account (Dunmore, para 121), Côté J misses the fact that the CLRA is animated by the purpose of protecting the wellbeing of children. Quibbling about the intentions of the parents as to where they intended to live as a family seems likely to preclude or undermine a meaningful consideration of where the child actually “resided,” which would entail contemplating a constellation of facts about the child’s social attachments to a given place.
The Shared Parental Intention is Unfeasible
As an organizing principle, the shared parental intention approach is practically unfeasible. The contested provisions of the CLRA seem especially important in situations where parents will present their intentions as to residence as radically divergent. In this sense, the shared parental intention approach is unworkable in scenarios precisely like this one, wherein there is no settled intention to ground jurisdiction. The shared parental intention approach could also conceivably invite the kinds of disputes that the statute seeks to avoid. The majority, for instance, flag the problematic nature of the shared parental intention approach on a strategic front: in complicated or violent family scenarios, one parent’s intention may not have been adequately or freely expressed, inviting the parties to file “thousands of pages of material [...] that are at most marginally relevant to the issues” (Dunmore, paras 57-58).
Moreover, the shared parental intention approach could completely disregard the child’s daily realities or history. The parents could have shared an intention to live in another place, neither Oman nor Ontario. Thus, a settled shared parental intention does not define where a child “resides” in the first place.
Conclusion
The holding that a child “resides where they are at home” (Dunmore, para 62) is not a tautology or truism, but a workable and contextual approach to the interpretation of the CLRA. The strength of the majority’s analysis is that they ground their analysis of the statute in the child’s social world and life history. In rejecting the parental intention approach, the Court brings important clarity to the interpretation of the CLRA in cases where children are caught in jurisdictional disputes.