Julie Tyas

The respondent brought a motion to set aside a final default order in a family law proceeding.

The default order required the respondent to pay significant retroactive and ongoing child and spousal support, as well as an equalization payment.

The respondent argued his failure to respond was due to depression and anxiety resulting from the marriage breakdown.

The court applied the test for setting aside a default judgment and found that while the respondent's excuse was thin, he had an arguable defence on the merits regarding income and child dependency.

The motion was granted, conditional upon the respondent paying $22,000 in costs thrown away and a $5,000 lump sum for support.

The applicant mother sought a determination that the child was habitually resident in Ontario and that an Ontario court should exercise jurisdiction over custody and access matters.

The respondent father opposed the application.

The child was born in Ontario but spent approximately 17 months of his 24-month life in Ecuador with both parents before the family came to Canada in October 2016.

Following a separation and altercation in Canada, the respondent retained the child's passport, preventing the applicant from returning to Ecuador.

The court found that the child's habitual residence was Ecuador, that substantial evidence regarding the child's best interests was available in Ecuador, and that on the balance of convenience, Ecuador was the appropriate forum.

The court declined jurisdiction and ordered the respondent to release the child's passport and documents to the applicant, along with travel costs to Ecuador.