Cheryll A. Harris

This is a costs decision following the court's grant of a summary judgment motion brought by the mother (applicant) dismissing the father's (respondent) Motion to Change a custody and access order.

The father had sought joint custody, increased access, and a retroactive reduction in child support.

The court found no genuine issue requiring a trial and dismissed the Motion to Change.

The mother sought costs of $26,000 for the summary judgment motion, $1,000 for responding to a 14B motion, and $7,500 for time wasted on three previous court appearances.

The father opposed the costs award and sought to reserve the issue pending appeal.

The court awarded costs based on the mother's success, the father's unreasonable conduct throughout the litigation, and the complexity and importance of the issues.

The mother brought a summary judgment motion to dismiss the father's motion to change custody and access provisions of a 2013 order.

The father sought joint custody, expanded access including mid-week overnight visits and school pick-ups, and changes to child support.

The court found no material change in circumstances warranting variation of the custody and access order.

The father's allegations regarding continued conflict, progressive hearing loss, need for American Sign Language instruction, cancelled visits, and other claimed changes were all found to be either not material or not supported by evidence.

The court granted the mother's summary judgment motion and dismissed the father's motion to change custody and access, while adjourning the child support variation claim.

The court also imposed a requirement that the father obtain leave before bringing any further motions to change custody or access.

The appellant wife appealed a decision dismissing her motion for judgment to enforce minutes of settlement.

The motions judge had found that the parties entered into a binding written settlement but directed a trial to determine whether there was a subsequent oral agreement to vary the terms.

The Divisional Court allowed the appeal, holding that the motions judge erred in failing to enforce the binding written contract, especially since the husband had not brought a cross-motion regarding the alleged oral variation.

A concurring opinion noted that under s. 55(1) of the Family Law Act, any agreement to amend a domestic contract must be in writing, rendering the alleged oral variation unenforceable.