C. Falquez-Warkentin

Following a motion determining that Ontario would not exercise jurisdiction over custody and access issues concerning children residing in Mexico, the court stayed the father’s application.

The decision addressed only the issue of costs.

Although the mother was the successful party on the jurisdiction motion and presumptively entitled to costs under rule 24(1), the court considered both parties’ conduct.

The court found that the father attempted to circumvent prior proceedings in the Ontario Court of Justice, while the mother engaged in deceptive conduct regarding her relocation plans.

In light of the mother’s misconduct, the court substantially reduced her costs recovery and fixed costs at $5,000.

The applicant father sought an order for the Ontario court to assume jurisdiction over two children who had been living in Mexico with the respondent mother for approximately 18 months and requested access under the Children’s Law Reform Act.

The mother opposed jurisdiction, arguing that the children’s habitual residence had shifted to Mexico and that the father had failed to timely assert his rights in Ontario proceedings.

The court found that the mother had obtained custody orders in Ontario and subsequently established the children’s residence, schooling, and routine in Mexico, thereby relocating their habitual residence.

The father’s prolonged inaction and failure to challenge the custody orders or pursue remedies earlier amounted in law to acquiescence to the children’s new circumstances.

The court held that even if Ontario retained jurisdiction, Mexico was the more appropriate forum to determine issues relating to the children’s best interests.