Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by communications staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

Dunmore v. Mehralian

Case summary

The Supreme Court concludes that the guiding principle to determine where a child resides for the purpose of custody proceedings under Ontario’s Children’s Law Reform Act is whether the child is at home in a place, not whether the parents intended to settle there.

This is an appeal about determining if Ontario courts have jurisdiction (authority) to hear a custody application under the Ontario’s Children Law Reform Act (“CLRA”) in this case. Under the CLRA, Ontario courts can make a custody order if the child habitually resides in Ontario at the time of the application.

A mother, an Iranian citizen and permanent resident of Canada, and a father, a Canadian citizen originally from Ontario, were married in Japan in 2015. They then lived in various countries 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 returned to Ontario in April 2021. In May 2021, the mother and father separated. The father then returned to Oman, whereas the mother and child remained in Ontario.

The father started a proceeding in Oman in June 2021, seeking a divorce and custody of the child. The following day, the mother commenced family law proceedings in the Ontario Superior Court. 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 habitually resided in Ontario for the purposes of the CLRA. The Court of Appeal agreed and dismissed the father’s appeal. The father then appealed to the Supreme Court.

The Supreme Court dismissed the appeal. The judgment was delivered orally by Chief Justice Wagner on the day of the hearing with reasons to follow.

In this case, the Ontario courts were correct in deciding they had the jurisdiction to hear and decide this matter.

A majority of judges concluded that for the purpose of determining if Ontario courts have jurisdiction to hear a proceeding brought under the CLRA, the definition of “habitually resident” in section 22(2) of the CLRA requires the court to look to where the child was residing at a prescribed time. The guiding principle to determine where the child was residing is whether the child is at home there, not whether the parents have a settled intention to reside in the place. In this 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. Therefore, there was no basis to interfere with that finding.