Wilamowski v Kostyrko 2026 ONSC 2126

BACKGROUND

This is a motion brought by the Respondent Father for the return of his two children, A.K. and J.K. from British Columbia back to their habitual residence in Ontario and the enforcement of parenting time. The Applicant Mother sought the court to retroactively grant an order for temporary relocation despite acknowledging that the children’s habitual residence is in Ontario and that she removed them in contravention of a court order. The parties were married in November 2013 and separated in March 2016. There was a final order made on consent setting out that the mother would have sole custody (though this term is out of date) and primary parenting time while the father have unsupervised access to the children for 6 hours, twice a week, during the weekdays as well as every other weekend. Since the acrimonious separation, both parties have found new partners. Between 2023 and 2024, the children began to show resistance toward spending time with their father. In May 2024, the mother and her new family received an N5 eviction notice and promptly found a place to live in Stoney Creek thereafter. Her lawyer served the father with a Notice of Relocation. The father did not consent; however, the mother relocated to Stoney Creek anyways. In early 2025, the mother’s new husband found employment as an operations manager of ESW Building Services in British Columbia, and the mother and her new family moved there in July 2025. She did not serve a Notice of Relocation had not facilitated any parenting time between the children and their father – not even over Zoom.

ISSUE

1. Is the temporary relocation to British Columbia in the best interests of the children?

ANALYSIS

Is the temporary relocation to British Columbia in the best interests of the children?

The court set out that although the Divorce Act does not provide specific guidance as to the process or test to be followed for temporary relocation motions, it is clear that the Divorce Act provides a clear scheme that the court must consider the following:

1. The burden of proof applicable to the case, and
2. Whether the relocation is in the best interests of the child

Prior to the amendments made to the Divorce Act in 2021, the leading test that applied to temporary motions for relocation was found in Plumley v Plumley 1999 CanLII 13990 (Ont SC). It was further outlined that in Diallo v Bah 2025 ONSC 2106, the Divisional Court made it clear that the factors from Plumley were overtaken by the amendments to the Divorce Act.

Diallo  does not explicitly provide a new test for the courts to consider in temporary relocation cases, however, subsequent cases have interpreted the explanation in Diallo as meaning that these decisions must be based on the children’s best interests using the relevant considerations from section 16 and the additional relocation considerations from section 16.92 of the Divorce Act.

With respect to the case at hand, given that the mother is the party proposing the move, she had the burden of proving that the relocation was in the children’s best interests. Unfortunately, the court noted that the quality of the evidence provided by the parties was significantly compromised. There were plenty of conflicting affidavits, hearsay, and speculation, importantly, but not limited to whether the father perpetrated family violence against the mother.

The court ultimately decided that even though the mother was the primary caregiver of the children and they have not had parenting time with their father for quite some time, the mother had not met her onus of proving that the move was in the best interests of the children because:

1. The mother had multiple breaches of court orders and failed to facilitate virtual parenting time while the children were in British Columbia;
2. The mother failed to provide Notice of Relocation to the father or seek the court’s permission to relocate;
3. The reason given by the mother that she relocated because her partner obtained a better job in British Columbia was not compelling enough to justify the move. This was especially because her partner moved to British Columbia independently first and returned to Ontario on multiple occasions to see the children;
4. The mother’s proposal for parenting time was unreasonable: she was seeking no parenting time between the father and the children; and
5. The court believed that there was a high likelihood that the mother would not comply with any future orders, particularly with respect to parenting time.

CONCLUSION

The court ordered that the children be returned to their habitual residence in Ontario and that the mother’s claim for temporary relocation of the children to British Columbia be dismissed. The trial regarding the mother’s request to relocate is still set to proceed during the October 2026 trial sittings.

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Categories: Child Support, Equalization