On June 20, 2025, the top court gave reasons for its majority judgment from the bench on Dec. 9, 2024, which dismissed Michael Paul Dunmore’s appeal: Dunmore v. Mehralian, 2025 SCC 20.
Dunmore appealed the rejection of his 2021 motion that challenged the jurisdiction of Ontario’s courts, under the province’s Children’s Law Reform Act (CLRA), to determine parenting issues between himself and his ex-spouse, Raha Mehralian, who lives with their now four-year-old child in Ontario.
He requested a declaration that the child was wrongfully removed to, and is being wrongfully retained in, Ontario and sought to return their then-five-month-old baby to his care in Oman (a Middle Eastern country that is not a signatory to the Hague Convention) where Dunmore had started divorce and custody proceedings.
A day after he sued for divorce in Oman, his estranged spouse launched family law proceedings in Ontario Superior Court. (The Omani courts ultimately granted a divorce and awarded primary custody to the mother.)
The motion judge in Ontario Superior Court dismissed the father’s motion, ruling that the Ontario courts had jurisdiction because the child was “habitually resident” in Ontario for the purposes of the CLRA s. 22(1)(a). She concluded it was not necessary for an Ontario court to determine the parental joint settled intention regarding their infant’s place of habitual residence when the court is required to determine the location of their infant’s habitual residence in a non-Hague Convention case.
The motion judge’s conclusion was affirmed by the Ontario Court of Appeal, which rejected Dunmore’s argument that she erred by failing to consider the settled intention of the parties.
Supreme Court of Canada Justice Sheilah Martin
In the instant case, Ontario courts properly took jurisdiction, the top court held. 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.
Justice Martin said the appeal was 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 CLRA, and to consider that question in respect of children not subject to the Hague Convention.
Supreme Court of Canada Justice Suzanne Côté
The statutory definition of “habitually resident” in s. 22(2) of Ontario’s CLRA requires the court to look to where the child was residing at a prescribed time, which, in the case at bar, was the time at which the child was most recently residing with both parents, she said.
“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,” Justice Martin said.
Her majority judgment clarifies that “the proper interpretation of the word ‘reside,’ grounded in the text, context and purpose of Part III [of the CLRA] 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,” Justice Martin wrote.
She elaborated that 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,” Justice Martin wrote. “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.”
She said 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,” Justice Martin advised.
She added that although determining where a child resided is a “a factual and contextual exercise,” that exercise “must not be allowed to become, a complex and costly one.”
She said that 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.”
In dissent, Justice Côté would have allowed the father’s appeal and remitted the case 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,” Justice Côté held. “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.”
Justice Côté said 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,” Justice Côté wrote. “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 parties before the court had spent most of their time together abroad. The Canadian father, who is originally from Ontario, and the mother, an Iranian citizen and Canadian permanent resident, married in Japan in 2015 and then lived in various countries together, generally moving due to the father’s employment. They lived together in Oman from April 2018 until March 2020, when they travelled to Ontario. They originally planned to return to Oman in April 2020 but remained in Ontario longer because of the COVID-19 pandemic. Their son was born in Ontario, and a month later the family returned to Oman. However, they soon returned to Ontario, and one month later the parents separated. The father returned to Oman, while the mother and baby stayed in Ontario.
Anthony Macri, Anthony Macri Family Law
“This is good for children as it keeps the focus of cases on the children and their lived experience, and not on the parents and their subjective intention,” Macri told Law360 Canada. “It gives the parents the ability to bring whatever evidence they consider to be relevant to the child before the court. The parents are not restricted by the simple ‘parental intention’ approach. A much broader analysis must be conducted.”
Macri predicted that “in an increasingly transnational world, these issues are going to be before the courts much more often.”
“We now have clarity on what the court should consider, and the parties should be ready to present this evidence in a highly fact-specific context.”
Macri said the court has clarified that “there is a difference between cases decided under the Hague Convention and those that are not governed by the Hague Convention.”
In non-Hague Convention cases, the court must consider all relevant factors to a child’s life and circumstances, Macri said. “The court noted that the definition of ‘habitual residence’ turns on what is meant by ‘resides’ and that courts should give it its ordinary meaning of ‘simply to live or be at home in a place.’”
Michael Stangarone, MacDonald & Partners LLP
The Supreme Court “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,” he told Law360 Canada. “The Supreme Court has reformulated the legal framework to apply in these high-stakes cases.”
Stangarone said in determining whether the court has jurisdiction or not, the court must determine the child’s home.
In the wake of Dunmore, “the court is not tasked with searching for legal formalities, but must consider all relevant links and circumstances when considering the child’s home,” he advised. “The analysis must focus on the factual connections as well as the circumstances surrounding any 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. That is an important fact that must be considered and given weight by the court.”
He said the court also reiterates that the family justice system must do more to expedite the resolution of jurisdictional disputes concerning children as delay harms children.
Caterina Tempesta, Office of the Children’s Lawyer
She said the court’s test for the determination of the habitual residence of children in alleged international abduction cases involving non-Hague Convention countries “will have a significant impact on the children” represented by the Office of the Children’s Lawyer, which delivers services on behalf of children with respect to their personal and property rights, including receiving notice of all “international child abduction” cases in Ontario and providing them with legal representation through its International Cases program.
“We see today’s decision as a positive development for children and consistent with the principles we encouraged the court to espouse,” said Tempesta, whose co-counsel were Sheena Scott and Kenneth Atkinson. “Although the majority acknowledged that the hybrid approach articulated in Office of the Children’s Lawyer v. Balev, a Hague case, does not apply directly to s. 22 of Ontario’s CLRA, which [section] applies to the issue of jurisdiction when non-Hague countries are involved, it held that similar considerations may still inform the analysis when answering the question of where a child ‘resided’ for the purpose of s. 22,” Tempesta explained. “The court clearly stated that a singular consideration of shared parental intention is inappropriate and takes the focus away from objective factors related to the child’s actual circumstances, giving undue priority to the parents’ subjective views. Instead, the proper interpretation is that ‘a child resides where they are at home’ (para. 62).”
“This requires looking at all the child’s ‘relevant links and circumstances’ to the jurisdictions in question, as suggested in Balev,” she said. “Importantly, the court also confirmed 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’ (para. 66).”
Tempesta said “this highlights the recognition of children as ‘full rights bearers,’” as Justice Martin previously wrote in Michel v. Graydon, 2020 SCC 24 (at para. 77), “with a part to play in their own lives” rather than merely as “passive recipients of their parents’ decisions.”
Deepa Mattoo, Barbra Schlifer Commemorative Clinic
“It shifts the focus of jurisdictional analysis from parental control to the child’s lived experience,” Mattoo explained. “It matters because it recognizes that legal frameworks must not be blind to the power dynamics within families, especially where there is a history of violence or coercion. The decision affirms that courts must consider the social context — including gender, migration and family violence — when determining jurisdiction. This is a significant step toward a more equitable, child-centred and trauma-informed legal system.”
Mattoo predicted the decision “will have a profound and positive impact on women and children, particularly those fleeing violence or navigating cross-border custody disputes. It provides more protection to survivors from being forced to litigate in jurisdictions where they may face systemic barriers or safety risks. By focusing on the child’s actual home and connections, the ruling supports stability and continuity for children and reduces the risk of legal systems being used as tools of continued control by abusive partners. It also empowers women to seek safety without fear of losing jurisdiction over their children.”
Mattoo said the decision closely reflects the principles advanced by the Barbra Schlifer Commemorative Clinic. “The clinic argued that the shared parental intention test is inappropriate in cases involving coercive control and that courts must adopt a contextual approach that centres the child’s best interests and the realities of family violence,” she explained. “The court’s majority explicitly acknowledged these concerns, citing the need to consider gender dynamics, coercive control and the vulnerabilities of migrant women. The ruling validates the clinic’s intersectional and trauma-informed legal advocacy.”
Fareen Jamal, Jamal Family Law
Neha Chugh of Chugh Law PC in Cornwall, Ont., with Maneesha Mehra, represented a coalition of three interveners — South Asian Legal Clinic of Ontario, South Asian Legal Clinic of British Columbia and South Asian Bar Association. She called the Dunmore ruling an “important and welcome clarification on the issues of habitual residence and jurisdiction.”
“Overall, we asked the Supreme Court to adopt a contextual approach to the determination of a child’s habitual residence. We encouraged the court to [consider] not only factors determined jointly by the parents, such as the pursuit of employment opportunities, schooling and activity enrollment for the children, accommodation arrangements, and one-way versus return travel arrangements, but also circumstances that may erode one parent’s ability to meaningful engage in joint decision-making, such as imbalanced power dynamics, family violence, and/or cultural and religious norms.”
Neha Chugh, Chugh Law Professional Corporation
Photo of Supreme Court of Canada Justice Suzanne Côté: Philippe Landreville, photographer, SCC Collection
Photo of Supreme Court of Canada Justice Sheilah Martin: SCC Collection
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