One of the most important concepts in international child custody litigation is habitual residence. The determination of a child’s habitual residence often dictates which country’s courts have jurisdiction to decide custody, relocation, and parental responsibility disputes. Yet that seemingly simple concept can be interpreted differently depending on whether the case is governed by the 1980 Hague Convention on the Civil Aspects of International Child Abduction or arises outside the Convention.
In its recent decision in Dunmore v. Mehralian, 2025 SCC 20, the Supreme Court of Canada addressed this distinction in a significant non-Hague international custody case. The Court clarified how “habitual residence” should be interpreted under Ontario’s domestic jurisdiction statute and, in doing so, offered valuable guidance for courts and practitioners handling cross-border custody disputes involving countries that fall outside the Hague Convention framework.
The decision is likely to influence future international family law litigation well beyond Canada.
The Jurisdictional Question
The dispute involved a child whose family had lived in both Ontario, Canada, and Oman, a country that is not a Hague Convention partner with Canada for purposes of child abduction proceedings.
The central issue was not who should ultimately receive custody. Instead, the threshold question was which country’s courts should decide the custody dispute.
Under Section 22 of Ontario’s Children’s Law Reform Act, Ontario courts have jurisdiction if a child is “habitually resident” in Ontario. The challenge before the Supreme Court was determining what that phrase means in a domestic jurisdiction statute governing a non-Hague case.
Specifically, the Court was asked to choose between two competing approaches:
- whether habitual residence depends primarily upon the parents’ last shared intention regarding where the child would live; or
- whether it should be determined through an objective examination of where the child was actually living and had become integrated.
The Court adopted the latter approach.
Rejecting the Shared Parental Intention Test
The Supreme Court concluded that habitual residence cannot depend primarily upon the subjective intentions of parents.
Instead, courts must examine objective facts demonstrating where the child has genuinely established his or her life.
The Court observed that nothing in the language of Ontario’s statute suggests that jurisdiction should turn on parental agreements or future plans rather than the child’s actual circumstances.
This distinction is particularly important in international custody disputes, where parents frequently disagree about whether an international move was intended to be temporary, permanent, or conditional.
Allowing jurisdiction to depend largely upon disputed parental intentions would introduce unnecessary uncertainty while diverting attention away from the child.
Habitual Residence Focuses on the Child—Not the Parents
The Court reaffirmed a principle that has become increasingly influential in modern international family law: jurisdiction should be determined by the child’s reality rather than competing narratives offered by the adults.
Relevant considerations include:
- where the child actually lives;
- the duration of residence;
- school enrollment;
- family and community connections;
- daily routines;
- cultural integration;
- language; and
- the overall stability of the child’s environment.
These objective factors provide courts with a more reliable framework for determining jurisdiction than attempting to reconstruct the parties’ subjective intentions.
Why Non-Hague Cases Require Special Attention
Perhaps the most significant aspect of the decision concerns the Court’s discussion of disputes involving countries outside the Hague Convention.
Unlike Hague Convention cases, courts cannot assume that foreign jurisdictions will apply internationally recognized child protection standards or provide reciprocal enforcement of custody determinations.
The Supreme Court acknowledged that international custody litigation involving non-Hague jurisdictions often presents additional legal and practical challenges.
Among those concerns are:
- uncertainty regarding enforcement of foreign custody orders;
- differing procedural protections;
- inconsistent recognition of parental rights;
- lack of reciprocal judicial cooperation; and
- potential barriers faced by parents attempting to vindicate custody rights abroad.
These realities reinforce the importance of carefully analyzing jurisdiction before substantive custody proceedings begin.
The Growing Importance of Habitual Residence in International Family Law
Although the concept of habitual residence originated largely through Hague Convention jurisprudence, its significance extends well beyond treaty cases.
Courts around the world increasingly rely upon habitual residence when resolving questions involving:
- international custody jurisdiction;
- relocation disputes;
- competing foreign custody proceedings;
- recognition and enforcement of foreign judgments;
- forum non conveniens; and
- cross-border parental responsibility.
The Canadian decision confirms that habitual residence remains a flexible factual inquiry centered on the child’s life rather than a technical exercise based upon parental intentions alone.
Practical Implications for International Custody Litigation
For parents involved in international custody disputes, the decision highlights several important lessons.
First, jurisdictional issues often determine the outcome of a case long before the merits of custody are ever considered.
Second, documentary evidence demonstrating where a child has actually established a home—including school records, medical records, immigration documents, extracurricular activities, and daily living arrangements—may prove more persuasive than conflicting testimony regarding parental intentions.
Finally, disputes involving non-Hague countries require careful strategic planning because the procedural protections and enforcement mechanisms available under the Hague Convention may not exist.
Why the Decision Matters Beyond Canada
Although Dunmore v. Mehralian interprets Ontario legislation, its reasoning reflects broader developments in international family law.
Courts increasingly recognize that jurisdiction should be grounded in the child’s actual life rather than legal formalities or competing parental expectations.
The decision also illustrates the growing judicial recognition that cross-border custody disputes involving non-Hague jurisdictions require careful attention to both international comity and the practical realities facing families engaged in multinational litigation.
For lawyers practicing international family law, the case provides an important reminder that jurisdictional analysis often begins—and sometimes ends—with the child’s habitual residence.
International Child Custody Representation
At Multi-Jurisdictional Divorce, we represent clients throughout New York and internationally in complex cross-border custody disputes involving Hague Convention proceedings, non-Hague child abduction matters, international relocation, competing jurisdiction claims, enforcement of foreign custody orders, and multi-jurisdictional family litigation.
Determining a child’s habitual residence is frequently the first—and most consequential—issue in an international custody case. Early legal analysis of jurisdiction can significantly affect the course of litigation, the available remedies, and ultimately the protection of both parental rights and the child’s best interests.