Beverley A. Johnston

The applicant mother previously moved for a stay of an interim custody and access order, which was dismissed.

The respondent father sought his costs of the stay motion on a substantial indemnity basis in the amount of $3,318.46.

The applicant argued for no costs due to divided success, or alternatively $1,000.

The court found no grounds for substantial indemnity costs, as the alleged unreasonable conduct occurred post-motion.

The court rejected the applicant's argument of divided success, finding the respondent was substantially successful.

The court awarded the respondent partial indemnity costs fixed at $2,433.53.

The applicant mother sought a stay of an interim order granting the respondent father joint custody and gradually increasing access to their four-year-old child, pending her motion for leave to appeal.

The mother alleged the father was violent and abusive, and that the child was suffering emotional harm from the access attempts.

The court found the mother failed to demonstrate a risk of irreparable harm to the child and that the balance of convenience favoured denying the stay to prevent the extinguishment of the father-child relationship.

The motion for a stay was dismissed, but the court ordered that the maternal grandparents supervise the initial access visits to facilitate a smoother transition.

The applicant mother moved for an extension of time to serve and file her notice of motion for leave to appeal an interim access order, and requested that the motion for leave be heard orally by a single judge.

The court granted the extension of time, finding the mother had a bona fide intention to appeal and a reasonable explanation for the short delay.

However, the court dismissed the request for an oral hearing before a single judge, holding that Rule 62.02 of the Rules of Civil Procedure mandatorily requires leave motions to be heard in writing by a panel of the Divisional Court.

Costs of $1,000 were awarded to the respondent father for the procedural issue.