Often times I decline taking on custody cases from potential new clients because Toronto courts, where I practise, lacks jurisdiction for custody or access and as such I advise those potential clients to retain a lawyer in the jurisdiction where the child resides to commence proceedings in that jurisdiction.
Section 22 of the Children’s Law Reform Act 2009, RSO 1990, c C.12, provides the authority for jurisdiction in custody and access areas. The sections states that:
- (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where,
(a) the child is habitually resident in Ontario at the commencement of the application for the order;
(b) although the child is not habitually resident in Ontario, the court is satisfied,
(i) that the child is physically present in Ontario at the commencement of the application for the order,
(ii) that substantial evidence concerning the best interests of the child is available in Ontario,
(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
(v) that the child has a real and substantial connection with Ontario, and
(vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 22 (1).
(2) A child is habitually resident in the place where he or she resided,
(a) with both parents;
(b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or
(c) with a person other than a parent on a permanent basis for a significant period of time,
whichever last occurred. R.S.O. 1990, c. C.12, s. 22 (2).
Below are examples of cases that have been decided under some subsections referred to above:
Section 22 (1) (b) – all factors met
The child was born in Ontario to Canadian mother and Mexican father, and spent half its life in Mexico and half travelling with the parents before the parents separated while visiting Ontario, and father returned to Mexico. Although the child was not habitually resident in Ontario, the curt had jurisdiction to proceed with mother’s application for custody as all six criteria in section 22 (1)(b) were satisfied, Obregon v Obregon, 39 R.F.L. (2nd) 164 (Ont. U.F.C.).
22 (1) (ii) that substantial evidence concerning the best interests of the child is available in Ontario
It is not sufficient under this section that that Ontario has some evidence; the evidence must be substantial. Where potential witnesses in Ontario only had intermittent knowledge of the children’ lives and the ability of both their parents to meet their needs, the Ontario court should defer to the court in the foreign jurisdiction where the child attended school for years before recently being brought to Ontario by one of the parents, Nordin v Nordin, 17 R.F.L. (5th) 119 (Ont. S.C.J.)
22 (1)(iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident
This requirement was met where the foreign court had not assumed jurisdiction in any clear and aggressive manner, and there were no pending appointments scheduled before in foreign court, Smith v. Deloreme, 44 R.F.L. (6th) 310 (Ont. S.C.J.)
22 (2) (a) A child is habitually resident in the place where he or she resided, with both parents
A child who resided in Ontario during the school year for the purpose of attending school, but returned to his parents in Quebec during breaks in the school year and over the summer, could not be said to be “habitually resident” in Ontario, MacEachern v. Barnes 7 R.F.L. (4th) 12 (Ont.Gen). Div.)
22 (2) (c) with a person other than a parent on a permanent basis for a significant period of time,
Where a child was left indefinitely with paternal grandparents in Egypt, and resided there for 10 months, Egypt was found to be his habitual residence, Kanafaniv Abdalla,  O.J. NO. 4226
A child who had been sent to India at the age of 9 months, and had lived for 14 months with the maternal grandparents, was living with them or a “permanent basis”. India was the child’s habitual residence even though the original plan was that the child reside with the paternal grandmother in India. The paternal grandmother left the child with the maternal grandparents after having the child with her for only 10 days, Dhillon v. Benipal,  O.J. No. 1311 (Ont. S.C.J.)