The mother, while pregnant, left Ontario for California where she gave birth to the child and intended to remain permanently.
The father brought an application in Ontario for shared custody, and the motion judge assumed jurisdiction by exercising the court's parens patriae power, finding a legislative gap in the Children's Law Reform Act since the child was not habitually resident in Ontario.
The Court of Appeal allowed the mother's appeal, holding that the child falling outside the statutory definition of habitual residence was a matter of legislative design, not a gap.
Furthermore, the court held there was no basis to exercise parens patriae jurisdiction as there was no evidence the child required the Ontario court's protection, especially given the ongoing proceedings in California.
