Supreme Court clarifies rules for habitual residence in family law

The Supreme Court of Canada has clarified that a contextual approach must be taken when determining where a child resides in international family law cases.

That comes in its written decisions for a December 9th ruling from the bench, where the majority dismissed the appeal, sided with the mother and affirmed that Ontario was the jurisdiction to hear the case. The final disposition was 8-1 in favour of dismissing the case.

The mother, Raha Mehralian, is an Iranian citizen and permanent resident of Canada. She married Canadian citizen Michael Dunmore in Japan in 2015.They lived in the United Arab Emirates in 2016, followed by Oman, before returning to Ontario with Dunmore’s parents in 2020. The COVID-19 pandemic curtailed their plans to return to Oman. 

Their child was born in Ontario in January 2021, after which they headed to Oman, where Dunmore was offered a job. They returned to Ontario in April on one-way tickets and bought furniture for a long-term rental as Dunmore found a new job in the province. The alleged domestic violence incident took place in May 2021. The couple separated in the wake of that,  amid further allegations the relationship had been abusive for some time.

Dunmore headed to Oman and initiated divorce proceedings a month later, arguing that their intention had been to live there, so it should be the jurisdiction to hear the custody case.

Mehralian commenced her family law proceedings in Ontario the day after Dunmore began his case in Oman.

Oman is not a signatory to the Convention on the Civil Aspects of International Child Abduction (Hague Convention), which ordinarily guides international child custody cases.

The Ontario Superior Court ruled that it has jurisdiction under the “habitual residence” provisions of the province’s Child Law Reform Act [CLRA]. 

“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,” Justice Sheilah Martin wrote for the majority. 

“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.”

The majority turned to general principles to determine the relevant interpretation of where a child “resided” under the Child Law Reform Act, encouraging courts to take a contextual approach.

The majority also said that any court determining residence must also appreciate the evidence of that particular family’s dynamics, “being especially alert to gender dynamics and the presence of family violence.” Further, in a situation of family violence, “judges may understandably struggle to find any genuinely shared parental intention to reside in a specific location.”

This language was particularly welcome by the South Asian Legal Clinics of Ontario and British Columbia, and the South Asian Bar Association, which were represented as intervenors by co-counsel Neha Chugh, from Chugh Law in Cornwall, Ontario.

“We were really asking the Court to look at contextual factors. So not just employment or immigration status, or request for immigration status—we were also looking at family context, and we wanted specific cultural issues involving families to be taken into consideration,” she says.

Chugh also points to factors listed by the majority, that include “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.”

“I’m happy that the Supreme Court is asking us to look at children and families in the entire context in which they live and work.”

While waiting for the written reasons, Chugh says she was interested in seeing how Balev would be interpreted, given its language around “all relevant links and circumstances.”

“Martin uses the phrase ‘open-textured approach,’ and I really like that term because she’s not just seeing children in terms of the strict application of the law. We were really anxious to see how she would interpret section 22(2) and (3) [of the CLRA] through the Balev lens,” Chugh says. “We were really pleased to see that she had a textured analysis.”

Deepa Mattoo, the executive director of the Barbra Schlifer Commemorative Clinic, which offers legal, counselling and interpretation services to marginalized and racialized populations of women and gender diverse people who have survived violence, also intervened in the case. 

She’s happy the Court affirmed a child-centred, trauma-informed approach.

“The emphasis on the contextual framing is really helpful,” she says. “The fact that the Court rejects the parental intention test is a critical shift. That test has long failed women who flee violence, especially migrants who are often forced to leave countries where there is no legal protection, family support or safety.”

Mattoo is also pleased to see the Court recognizing coercive control, intimidation, and abuse that can be at the crux of the matter for cases.

The Court will be returning to the issue of coercive control and family violence with the upcoming decision in Ahluwalia v Ahluwalia.

Mattoo notes that in situations like this one, where there is an international component, courts need to consider not only the laws of the other country but also the cultural context and even the political context.

“One of the challenges that the courts have, speaking as a practitioner who has seen what is happening in our courts, is how family law judges are trained in looking into the very complex contexts of these transnational cases,” she says. 

“I question how much support and training our judges are getting, because there is a broader context that judges should be mindful of.”

Chugh says that in a post-COVID world, more families are in motion with the ability to work remotely from anywhere, but also with contexts like refugees, immigration, or diplomats.

“We are seeing different types of family structures in different places, and a lot more mobility. So what does that mean for the definition of home?” she asks. “I think that’s something that courts are still grappling with.”

Chugh hopes this decision will provide some signposts.

Speaking in her personal capacity and not on behalf of her clients, Chugh praises the access to justice angle in this decision, particularly the child-focused approach and respect for the voice of the child. Ditto for the fact that Martin called out the 4,000 pages of materials and over 20,000 text messages appended to the motion and called on all participants in the family justice system to do more to expedite matters involving children.

“It was a real nod to how family law is practiced in our jurisdiction,” she says. 

“As someone who works in a rural jurisdiction, I’m excited that the Supreme Court is seeing this. We are in an access to justice crisis, especially in family law—this is huge.”