Eileen Spraggett

The applicant mother brought a motion to vary a temporary custody and access order to allow the children to transfer to schools near her residence, based on the recommendations of an Office of the Children's Lawyer (OCL) clinical investigation report.

The respondent father opposed the motion and brought a cross-motion for various relief, arguing the OCL report should be tested at trial.

The court found that the completion of the OCL report and the father's undermining behaviour constituted a material change in circumstances.

Finding exceptional circumstances that required immediate action in the children's best interests, the court granted the mother's motion, ordered the school transfer, and adjusted the father's access schedule accordingly.

This was a family costs endorsement following an interim custody motion involving domestic violence allegations, competing claims of success, and a section 30 assessment.

The court held the applicant was substantially successful because the respondent sought to extend a temporary order effectively preserving his sole custody position, while the resulting order instead granted the applicant temporary sole custody.

Applying s. 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules, the court found no basis for elevated costs but awarded partial indemnity costs.

The applicant recovered $9,163.85 inclusive of fees, HST, and disbursements.