The statute provides that the Ontario courts have child custody jurisdiction over children who are habitually resident in Ontario, but the statutory definition is different from the interpretation promulgated by the Court in its seminal ruling in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398 in Hague Convention cases.

The family members in the case had lived in both Oman and Ontario. The key issue was whether “habitual residence” as defined in the statute in non- Hague Convention cases should be based on the last shared and settled intention of the parties (which would require that Ontario must recognize that Oman had jurisdiction) or on the place where the child was at home (which was Ontario).

The Court rejected an interpretation that focuses on shared parental intention, because there is nothing in the statutory text that indicates that the ordinary meaning of “reside” is displaced by that concept.

It held that a shared intention approach would wrongly take the focus away from objective factors, such as where the child lived, and gives undue priority to the parents’ subjective views. It is a more open‑textured approach that best fulfills the goals of prompt return and best protects children.

The Court further held that, to the extent that different considerations apply in cases outside the scope of the Hague Convention, they only further militate against a shared parental intention approach.

This is because “courts cannot assume that jurisdictions not party to the Hague Convention will be guided by the best interests of the child … nor that they will demonstrate the reciprocity necessary for orderly interjurisdictional decision making with respect to children … J. Morley, “International child abduction and non-Hague Convention countries”, in M. Freeman and N. Taylor, eds., Research Handbook on International Child Abduction: The 1980 Hague Convention (2023), 244, at pp. 249-50). In this context, Professor Nicholas Bala notes that parents, “especially mothers”, may have “great challenges” in enforcing custody rights in some non-Hague countries, “even if the children were born in Canada and spent their entire lives here” (pp. 309 and 357; see also Morley, at p. 252).”