Understanding international moves and parenting time
When parents live in different countries, questions about where a child should live can become especially complicated. Sometimes, one parent may take a child to another country without the other parent agreeing. This can happen for many reasons, such as wanting to be closer to family or because of a difficult situation at home. But in the eyes of the law, it may be seen as international child abduction.
To protect children in these situations, more than 100 countries, including Canada, follow an agreement called the Hague Convention. It helps make sure that if a child is taken or kept in another country without permission, they are returned quickly to the place that has been their usual home. The goal is for parenting decisions to be made in the country where the child's life, schooling, and community are established.
Parenting across borders without the Hague Convention
The Hague Convention is meant to give parents some clarity in situations that can feel overwhelming. It sets out rules for when a child should be returned to the country that has been their home. If a child under 16 is taken to another country that has signed on, and the other parent who shares parenting rights didn't agree, the parent left behind can use the Convention to ask for the child's return.
But here's where things get tricky. Not every country is part of the Hague Convention. When one country hasn't signed, parents can't use that international process. Instead, they must rely on the local laws of the countries involved. That can mean longer, more complicated legal disputes, with a lot of uncertainty about the outcome.
This happened recently in a case before the Supreme Court of Canada called Dunsmore v. Mehralian. One parent lived in Canada, the other in Oman, a country that isn't part of the Hague Convention. The case shows how Canadian courts try to handle these cross-border parenting disputes when the usual international framework does not apply.
Where is a child's true home? Guidance from the Supreme Court of Canada
In Dunsmore v. Mehralian, the parents' lives had taken them across several countries because of the father's work. The mother was an Iranian citizen and Canadian permanent resident, while the father was a Canadian citizen from Ontario. They lived in Oman from 2018 until early 2020, then came to Ontario, where their child was born later that year.
The family went back to Oman briefly in early 2021, but by April they had returned to Ontario and were living there together. Soon after, the relationship broke down. In May 2021, the mother stayed in Ontario with the child while the father went back to Oman. The father quickly started divorce and custody proceedings in Oman. The very next day, the mother began her own application in Ontario. This set up a difficult question: which country's courts had the right to decide parenting issues?
Ontario's Children's Law Reform Act (CLRA) provides that Ontario courts have jurisdiction to make parenting or contact orders if the child is "habitually resident" in Ontario at the time the proceeding commences. So the central issue became: where was this child truly at home? The father argued the family had intended to live in Oman. He pointed to their history there and to his return for work, saying the child's habitual residence should be Oman. The mother, on the other hand, said the child's life was clearly based in Ontario by the time of separation, the child had been living there with both parents and was settled in that environment.
Both the Ontario Superior Court and the Court of Appeal agreed with the mother, finding that Ontario was the child's habitual residence. The Supreme Court of Canada, in an 8–1 decision, upheld that view. The Court explained that under section 22(2) of the CLRA, determining habitual residence means looking at where the child is living at the relevant time, in other words, where the child is "at home."
This approach focuses on the child's real day-to-day life, not on the parents' future plans or intentions. This approach aligns with the Court's earlier decision in Office of the Children's Lawyer v. Balev, which advocated looking at all relevant links and circumstances rather than strictly the parents' intentions.
The Dunsmore case matters because it shows how Canadian courts may step in when a dispute involves a country that has not signed the Hague Convention. By focusing on where a child is truly at home, the Supreme Court confirmed that the child's stability and lived environment come first. This child-first lens also matters where there are safety concerns, including allegations of family violence, something reflected in Dunsmore, so children aren't sent back into a potentially unsafe situation.
What this means for Canadian families and the law
This focus on the child's lived reality isn't limited to international cases. Canadian courts have taken the same approach even when both parents live in the same province. One such case was Barendreght v. Grebliunas, where the Supreme Court determined parenting arrangements where the parents were residing in two different locations in British Columbia. The Supreme Court determined that the question in relocation cases is to determine if it is in the best interests of the child regarding their physical, emotional and psychological safety, security, and well-being.
This shift toward emphasizing the child's welfare is also evident in recent legislative changes. Amendments to Canada's federal Divorce Act (in force as of March 2021) replaced terms like "custody" and "access" with concepts such as "parenting time," "decision-making responsibility," and "contact orders." These updates may sound technical, but they're part of a bigger change: moving away from "winning" or "losing custody" and focusing instead on what arrangements actually support the child's life and well-being.
What parents can take away
Cross-border family disputes, especially when children are involved, can be some of the hardest situations parents face. When a child is taken or kept in another country without agreement, both international treaties and Canadian laws come into play. The Hague Convention offers a clear process in countries that have signed on, but when it doesn't apply, Canadian courts rely on domestic laws and past cases to decide what's best. Decisions from the Supreme Court of Canada, including Dunsmore v. Mehralian show how much weight the courts place on where a child is truly "at home" and on their overall well-being. Every case turns on its own unique facts, but the guiding principle is the same: putting the child's best interests first. If you're facing a cross-border parenting dispute, know that you're not alone. Timely legal advice can help protect your rights and, most importantly, your child's well-being.
1 Dunsmore v. Mehralian, 2025 SCC 20.
2 Children's Law Reform Act, RSO 1990, c C.12, s 22(2).
3 Office of the Children's Lawyer v. Balev, 2018 SCC 16.
4 Barendreght v. Grebliunas, 2022 SCC 22.
5 Divorce Act, RSC 1985, c3 (2nd Supp.).
