Jennifer Macabenta

Trial concerning the applicant mother's request to relocate with the parties' two young children (ages approximately 1.5 years and 7 months) to the Philippines, opposed by the respondent father who sought unsupervised and eventually shared parenting time.

The court found the mother had been the children's primary caregiver since birth, that the father had failed to provide any financial support for over a year despite court orders, and that there was a power imbalance constituting family violence through financial abuse and the mother's tenuous immigration status.

The court authorized the relocation, finding the mother's plan for the Philippines was child-focused and fiscally responsible, offering family support, stable housing, healthcare, and employment prospects unavailable to her in Canada.

The father was granted virtual parenting time, annual visits to the Philippines, and annual in-person visits when the mother returns to Toronto with the children.

This decision addresses the issue of costs in family law motions concerning parenting, child support, and relocation.

The court analyzed the application of subrule 24(12) regarding costs consequences of failure to accept a settlement offer, finding that the mother’s offer was as good as or better than the court’s order on key issues such as primary residence, decision-making responsibility, and supervised parenting time.

The father was ordered to pay costs, but the amount was reduced due to his success on the relocation issue.

The court emphasized the importance of reasonableness, proportionality, and the parties’ conduct in awarding costs, noting both parties acted unreasonably and neither was a credible witness.

The decision also highlights the necessity of a bill of costs for proper assessment and the court’s discretion in setting payment plans.

The mother brought a motion seeking temporary primary residence, sole decision-making responsibility, and permission to temporarily relocate with the parties' two young children to the Philippines.

The father opposed the relocation, seeking primary residence himself or, alternatively, joint decision-making and the return of the children to St. Catharines.

The Ontario Court of Justice granted the mother temporary primary residence and sole decision-making, finding it in the children's best interests given her role as primary caregiver.

However, the court dismissed the mother's request to temporarily relocate to the Philippines, ruling that such a significant and potentially irreversible move must be decided at a full trial.

The court ordered that the father's parenting time be professionally supervised in Toronto and that he pay $543 monthly in temporary child support.