A father brought an application under the Children’s Law Reform Act seeking shared custody of a newborn child born in California after the mother travelled there late in pregnancy.
The primary issue on the motion was whether Ontario had jurisdiction over custody despite the child never residing in Ontario.
The court found that both parents were habitually resident in Ontario before the mother travelled to California and that the mother’s intention to relocate permanently to California arose only after the child’s birth.
Invoking the court’s parens patriae jurisdiction to address a gap in the statutory definition of habitual residence, the court held that Ontario had jurisdiction to determine custody.
The court also held that the respondent’s earlier Notice of Constitutional Question constituted attornment to the jurisdiction of the Ontario court.
