Anamur v. Anamur 2009 Ontario Superior Court of Justice

The parties in this case were married in Turkey on September 21, 1995. They moved to Canada in 2006 and resided in Oakville, Ontario. They separated in 2008 and two motions were brought before the court.

The Applicant Mother was seeking an order for custody of the child of the marriage, namely, Onur Anamur, and the Respondent Father brought a motion seeking custody of the child and further that the child be transferred to Turkey along with the hearing of the herein matter.

In November 2009, the Respondent Father commenced a legal proceeding in Turkey. The Applicant Mother was not served with the appropriate motion materials. The Turkish Court made an interim order awarding the Respondent Father with guardianship of the child. Subsequently, in December, 2009 the Respondent Father brought this Motion relying on The Hague Convention arguing that the child was wrongfully removed from Turkey and section 22 of the Children’s Law Reform Act (CLRA), which provides the court with circumstances where an order regarding custody and access can be made.

Although the term ‘habitual residence’ is not defined in the Hague convention, the general principles to determine same are found in case law, (Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.) and Jackson v. Graczyk, 2007 CarswellOnt 3216). They are as follows:

  • The question of habitual residence is a question of fact to be decided on all the circumstances;
  • A person’s habitual residence is the place where that person resides for an appreciable period of time with a “settled intention” to do so;
  • A “settled intention” is an intention to stay in a place, temporarily or permanently, for a particular purpose, such as employment or family; and
  • A child’s habitual residence is tied to that of the child’s custodial parent.

The child was residing in Ontario with the consent of the Respondent Father for the purposes of bettering the child’s life and education. The Respondent Father had sworn an affidavit in April, 2009, stating the following:

We immigrated to Canada on March 11th, 2006, but permanently moved to the province on December 11, 2006, hoping to give a better future our son, Onur.

The above further demonstrates the intention of the parties to reside in Ontario for the purpose of bettering the child’s life. Therefore, the court found that the Hague Convention had no application in the herein matter.

Section 22 of the CLRA gives jurisdiction to the Ontario Court to make an Order regarding the custody and access of the child.

Subsection 22(2) of the Act defines habitual residence as follows:
(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.

Given that the child was living with the Respondent Mother in Oakville at the commencement of the application, the child was residing in Ontario for the purposes of section 22 of the CLRA.

The Applicant Mother’s motion was allowed. An order was made for sole custody of the child to the Applicant Mother. The Respondent Father’s motion was dismissed. The court did not recognize the order of the Turkish court as the Respondent Father had attorned to the jurisdiction of the Ontario Court.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. This case provide an interesting review of the principles that guide the Court in defining the “habitual residence” of a child for the purposes of determining the jurisdiction with the authority to make Orders about the said child. This area of law is frequently tested and, as such, the review of the applicable principles is most helpful. This case also highlights the importance of the demonstrated intention to reside in a particular jurisdiction, and the bearing that this has on the issue of determining the appropriate jurisdiction.

Leave a Reply

Your email address will not be published. Required fields are marked *