What Is Habitual Residence — And Why It Matters in Family Law

In family law, few questions are as critical—or as complex—as determining where a child “habitually resides.” This concept plays a key role in deciding which court has jurisdiction over matters such as parenting time, decision-making responsibility, and major life choices concerning the child. 

But what does it actually mean for a child to be habitually resident in a particular place? 

A recent Ontario case, Mehralian v. Dunmore, [2024] A.C.S. No. 101 | 2025 SCC 20, offers valuable insight into habitual residence family law – how courts assess this issue.

What Is Habitual Residence?

At its core, habitual residence is about where a child truly “lives” — not just physically, but in terms of stability, daily life, and intention. It’s not about where the child is visiting or temporarily staying. Instead, the court looks for a settled intention to reside in a place for an appreciable period of time.

Mehralian v. Dunmore: A Case Study

In Mehralian v. Dunmore, the Ontario Superior Court had to decide whether a child was habitually resident in Ontario at the time a dispute arose between the parents. The parents had travelled to Ontario, but was it a visit? Or had they actually moved there with the intention to stay? 

The court dug into: 

• The parents’ housing situation 

• Whether the child had been enrolled in school 

• Whether the parents had jobs or long-term plans in Ontario 

• The timing of the move and the actions taken before and after 

Ultimately, the court found that the child was habitually resident in Ontario. Why? Because there was evidence of a shared intention to settle, and the child had begun to integrate into life here. 

The “Hybrid Approach” from Balev

To reach this decision, the court leaned on the “hybrid approach” established by the Supreme Court of Canada in Office of the Children’s Lawyer v. Balev. 

This approach asks two key questions: 

1. What were the intentions of the parents or guardians? 

1. What were the actual circumstances of the child? 

In other words, it’s not enough to say, “We planned to live in Ontario,” or “We were just visiting.” Courts need to see real evidence—school enrollment, routines, housing, and more. This approach moves beyond technicalities and looks at the child’s real-life experience. 

What Does the Law Say? (CLRA Basics)

Section 22 of Ontario’s Children’s Law Reform Act (CLRA) provides a legal framework for habitual residence. It states that a child’s habitual residence is based on the last place where they lived with: 

• Both parents (if they were together), 

• One parent (under a court order or agreement), or 

• A lawful guardian or custodian. 

The CLRA also clarifies that you can’t change a child’s habitual residence meaning just by taking them away without the other parent’s consent, acquiescence, or undue delay in objecting. This is a safeguard against wrongful removals or unilateral decisions. 

Other Recent Cases Reinforce the Principles

Mehralian isn’t the only case that’s shaped how habitual residence is understood. A few other notable cases include:

• Pengelly v. Lynas (2024): Focused on actual living arrangements over formal agreements. 

• Kalra v. Bhatia (2024): Showed how habitual residence can shift over time if the child’s situation changes. 

• Al-Hassan v. Ankamah (2023): Emphasized that the child’s best interests remain central. 

Final Thoughts

Determining a child’s habitual residence family law isn’t always straightforward. It takes a careful review of the facts, the law, and—most importantly—the child’s reality. Mehralian v. Dunmore reinforces that it’s not about where the child is on paper, but where they’re truly settled and integrated. 

If you’re facing a situation involving relocation, custody, or cross-border parenting issues, understanding habitual residence—and how Ontario courts apply it—can make all the difference.