Jessica Luscombe

Following a trial under the Hague Convention ordering the return of two children to the UK, the successful applicant father sought costs on a full recovery basis.

The court found the respondent mother's conduct to be unreasonable, though stopping short of bad faith, and ordered her to pay $150,000 in costs.

In a Hague Convention return application, the court found that two children wrongfully retained in Ontario remained habitually resident in the United Kingdom.

Applying the hybrid habitual residence approach, the court held that annual vacation visits and a 29-day temporary stay in Ontario did not displace the children’s deep social, educational, and familial connections to the UK.

The court rejected the respondent’s Article 13 defences of consent or acquiescence, grave risk of harm, and child objection, finding the evidence of alleged abuse and coercive control unreliable in material respects and the children’s stated wish to remain in Canada insufficiently mature and not independent.

The court ordered the children’s return to the UK and treated the applicant’s undertakings regarding housing, transportation, rent, and school fees as binding if the respondent returns with them.

The applicant mother brought a motion to change a 2019 final consent order regarding parenting of their 8-year-old child.

The respondent father had withheld in-person parenting time from the mother for three years and was previously found in contempt.

The child exhibited severe behavioural issues and defiance toward the mother but not the father.

The court found a material change in circumstances and ordered a hybrid parenting plan, requiring immediate reunification therapy paid for by the father, 50/50 parenting time pending a review, and for the court to remain seized of the matter for one year to ensure compliance and monitor the child's best interests.

The Respondent Mother, entirely successful in a prior Hague Application, sought costs from the Applicant Father.

The Mother requested $50,714.80, arguing for substantial recovery up to her offer to settle and full recovery thereafter, citing the Father's alleged bad faith.

The Father disputed the amount and denied bad faith, arguing the offer did not meet Family Law Rules requirements for full indemnity.

The court, applying Rule 24 of the Family Law Rules, found the Mother presumptively entitled to costs.

While acknowledging the Father's unacceptable conduct, the court determined it did not meet the high threshold for bad faith warranting full recovery costs.

The Father's claims of inability to pay were not substantiated due to a lack of financial disclosure.

The court ultimately awarded the Mother $37,500.00 in all-inclusive costs, representing a slightly higher award than on a partial indemnity basis.

The applicant mother sought the return of her two children to Costa Rica under the Hague Convention on the Civil Aspects of International Child Abduction, arguing they were habitually resident there and wrongfully retained in Canada by the respondent father.

The father contended the move to Costa Rica was temporary and the children's habitual residence remained Ontario.

The court applied the hybrid approach to determining habitual residence, considering parental intention and the children's acclimatization, and found that the children's focal point of life was Costa Rica as of August 11, 2023.

The application was granted, and the children were ordered to be returned to Costa Rica, as no exceptions to return applied.

This endorsement addresses the costs arising from the dismissal of the Applicant father's Hague Convention application for the return of his daughter to Florida.

The Respondent mother sought $64,379.73 in full indemnity costs and requested the order be enforceable as a support order.

The court applied the principles of costs in family law, emphasizing proportionality and reasonableness.

It found the Respondent's counsel's billed time excessive and dismissed the claim for full indemnity costs, as no basis under the Family Law Rules was established.

The request to deem the costs a support order was also denied, as the original application did not involve support issues.

The court awarded the Respondent $35,000.00 in costs.

The appellant father appealed the dismissal of his Hague Convention application seeking the return of his 3.5-year-old daughter from Toronto to Florida, arguing the application judge erred in determining the child's habitual residence.

The Court of Appeal affirmed the lower court's finding that the child's habitual residence was Toronto, concluding there was no wrongful removal or retention, regardless of the specific date chosen for determination.

The court also dismissed the father's arguments regarding the application judge's alleged overemphasis on parental intention, inadequate reasons, and allowing the mother to participate without filing an Answer.

The appeal was dismissed with costs.

The applicant mother sought an interim order to relocate with the parties' two children from Toronto to Ottawa due to a mandatory military posting.

The respondent father brought a motion to dismiss the application, arguing British Columbia was the children's habitual residence.

The court found Ontario had jurisdiction as the children were habitually resident there pursuant to the parties' separation agreement.

The court granted the interim relocation, finding compelling circumstances, and ordered a flexible parenting schedule for the father.

The court declined to order child support, finding the father would suffer undue hardship due to the high costs of travel to exercise parenting time and his existing support obligations for two other children.

The applicant father brought a motion under the Hague Convention for the return of his three-year-old daughter to Florida.

The respondent mother had travelled to Toronto with the child in July 2021 and subsequently decided not to return.

The court applied the hybrid approach to determine the child's habitual residence immediately prior to the alleged wrongful retention in December 2021.

The court found that the focal point of the child's life was in Canada, where she had spent a significant portion of her life and where her primary caregiver and extended family resided.

As the child was habitually resident in Canada, the Hague Convention application was dismissed.

The parties, unmarried parents of a three-year-old child, separated after a brief relationship marked by high conflict and incidents of domestic violence.

The mother sought sole decision-making responsibility and permission to relocate with the child from North Bay to Sudbury, while the father sought joint decision-making and equal parenting time in North Bay.

The court granted the mother sole decision-making responsibility, finding that the parties' inability to communicate and the father's lack of trust made joint decision-making unworkable.

The court also authorized the relocation to Sudbury, concluding it was in the child's best interests given the mother's role as primary caregiver, her need for family support, and the father's failure to foster a cooperative relationship.

The father was granted generous parenting time and ordered to pay child support.

The appellant mother appealed a trial judge's order granting the respondent father sole custody/decision-making responsibility for their child and temporarily suspending the mother's contact, following a finding of parental alienation.

The appellant argued the trial judge misapplied the best interests test, failed to consider less drastic options, did not adequately weigh the child's views, and misapprehended evidence.

The Court of Appeal found no merit in these submissions, affirming the trial judge's findings of parental alienation and the drastic change in custody as being in the child's best interests, supported by the evidence.

The appeal was dismissed, and the appellant was ordered to pay appeal costs.

The appellant mother appealed a trial decision denying her request to relocate with her child from Waterloo to Michigan to live with her fiancé.

The Divisional Court allowed the appeal and admitted fresh evidence of emails demonstrating the respondent father's emotionally abusive and controlling behaviour.

The court found the trial judge erred in principle by failing to apply established mobility jurisprudence, over-emphasizing the maximum contact principle, failing to respect the custodial parent's views, treating the status quo as a default, and placing the mother in a classic double bind.

The appeal was allowed, and the mother was granted permission to relocate with the child.

The moving party (mother) sought an extension of time to appeal a final parenting order and a stay of that order pending appeal.

The Court of Appeal for Ontario granted the extension of time, finding the three-day delay was minimal and an appeal right existed.

However, the court refused the stay, emphasizing that it was not in the child's best interests to disrupt the therapeutic program and living arrangements established by the trial judge's order, which aimed to rebuild the child's relationship with the father.

The respondent (wife) brought a motion to enforce a consent order requiring the applicant (husband) to transfer his interest in a holding company and resign as officer/director, as a spousal tax-free capital rollover.

The husband refused to comply, arguing he was unaware he had signed a personal guarantee for the dental practice's line of credit and that the order should be set aside due to mutual or unilateral mistake, or unconscionability, as it did not address his release from the guarantee.

The court found no valid reason to set aside the order, noting the husband was represented by counsel, had an existing indemnity, and the wife had attempted to secure his release from the bank without success.

The court dismissed the husband's arguments of mistake and unconscionability, emphasizing that buyer's remorse is not a basis to disobey a consent order.

The motion to enforce the order was granted, compelling the husband to comply within seven days, regardless of the guarantee release, and ordering the wife to provide a further indemnity.

The applicant father sought to re-open an already decided appeal based on new text message evidence from the respondent mother, which he argued undermined her previous narrative regarding their child's residency in Dubai.

The Court of Appeal for Ontario dismissed the application, reiterating that re-opening an appeal is a rare event reserved for cases of "very serious injustice." The court found the new evidence irrelevant to its original decision, which focused on the need to respect a U.K. Consent Custody Order and for the father to pursue the matter in the U.K. first, rather than making credibility findings.

Costs were awarded against the father.

The applicant brought an urgent motion seeking orders related to parenting time and travel for their son during the COVID-19 pandemic.

The respondent unilaterally took the child to Whistler, British Columbia, despite an agreement to remain in Toronto and the applicant's concerns about non-essential travel and COVID-19 risks.

The court found that the respondent breached the terms of a prior British Columbia order (the "Bowden Order") and the parties' subsequent agreement.

The court rejected the respondent's claim of duress and emphasized the "best interests of the child" principle, particularly the "zero tolerance" for reckless exposure to COVID-19 risk.

Interim orders were granted, mandating the respondent to comply with COVID-19 protocols, restricting in-person access to Ontario, and prohibiting the use of public transit for the child.

The father brought an application under s. 40 of the Children's Law Reform Act (CLRA) seeking the return of their child to Dubai, claiming wrongful retention in Ontario.

The application judge ordered the child's return to Dubai, erroneously applying the Hague Convention framework despite the UAE not being a signatory.

The Court of Appeal found this was an error, as s. 40 CLRA is distinct from the Hague Convention, particularly regarding the concept of "habitual residence" and the court's broad discretionary powers.

The appeal was allowed, the lower order set aside, and the father's application stayed on condition he commence proceedings in the UK, where a prior consent custody order existed.