In cross-border litigation, questions of jurisdiction are usually the first and most consequential hurdle. When individuals and families have connections to more than one jurisdiction, determining which court has authority to hear a dispute is not straightforward. Courts rely on connecting factors – most commonly residence – to determine jurisdiction. However, the concept of “residence” has become increasingly complex. The decision of the Supreme Court of Canada in Dunmore v. Mehralian, 2024 SCC 39, affirming Mehralian v. Dunmore, 2023 ONCA 806 dismissing appeal from Mehralian v. Dunmore, 2023 ONSC 1044, offers guidance on how courts should approach the inquiry of “residence”, particularly in the context of family law but with implications that extend beyond it.
In Dunmore, the issue of jurisdiction arose on a motion in the Ontario Superior Court brought by Mr. Dunmore, in a parenting dispute involving competing claims in Ontario and Oman. The court was asked to determine whether a child born in Ontario to parents with ties to other countries, including Oman, was habitually resident in Ontario under section 22(1)(a) of Ontario’s Children’s Law Reform Act (“CLRA”). The motion judge found that the child was habitually resident in Ontario and dismissed the motion. That finding was upheld by the Ontario Court of Appeal and the Supreme Court of Canada (the “SCC”).
At issue was the meaning of “resided” under section 22(2) of the CLRA – a threshold inquiry in determining habitual residence of a child.[1] The SCC explicitly declined and cautioned against a rigid approach to the meaning of resided when determining jurisdiction, stating that shared parental intention is not determinative in this context.[2] Instead, it adopted a contextual and fact-based approach.[3] The court observed that “[t]he notion of home helps to remind us that we are not in search of legal formalities here, but must remain squarely focused on the child’s life and circumstances when asking where they reside”.[4]
This reasoning aligns with well-established private international law principles, where the concept of residence “denote[s] something that is generally more than visiting or sojourning, but without the formalities inherent in concepts like domicile, nationality or citizenship”, as stated by the SCC.[5] Further, the SCC confirmed that for residence, physical presence and permanence are not conclusive[6] and that courts should consider “all relevant links and circumstances”.[7]
While grounded in family law, the SCC’s reasoning carries broader relevance. Dunmore demonstrates that the courts, when faced with multipolar connections, will assess residency based on lived reality rather than merely focusing on intention and legal formalities.
[1] Dunmore v. Mehralian, 2025 SCC 20, affirming Mehralian v. Dunmore, 2023 ONCA 806 dismissing appeal from Mehralian v. Dunmore, 2023 ONSC 1044, at para. 44
[2] Ibid, at paras. 6 and 61
[3]Ibid at paras. 6 and 76
[4] Ibid at para. 63
[5] Ibid at para 47
[6] Ibid at paras. 64 and 65
[7]Ibid at para. 68