Glenda D. McLeod

The appellant father appealed from a motion judge's order arising from a motion to change custody and access arrangements for two children.

The motion was limited by consent order to three specific recommendations from the Office of the Children's Lawyer report.

The motion judge adopted the recommendations providing sole custody to the mother with consultation requirements, maintained the existing access schedule, and modified the geographic restriction to allow the mother to live within 30 km of the father rather than being confined to Kitchener-Waterloo.

The father sought to characterize his access time as "care and control" and sought additional decision-making authority over school and medical decisions.

The Court of Appeal upheld the motion judge's decision, finding no reviewable error and dismissing the appeal on both merits and costs.

This is a costs ruling following a motion where the father (applicant) sought variations to a consent order, which was dismissed due to no material change in circumstances.

The father subsequently sought costs, alleging the mother's (respondent's) unreasonable conduct.

The court rejected the father's arguments, finding his motion "unhelpful" and driven by a "fear of losing control," especially given his prior agreement to the mother having sole custody.

The court affirmed the mother's presumptive entitlement to costs as the substantially successful party.

Considering the mother's Offer to Settle, she was awarded partial indemnity costs to a certain date and full indemnity thereafter.

The court found the mother's total costs claim of $28,718.21 to be fair and reasonable.

Rebecca Steckly moved to set aside a default order granted to Nolan Steckly in an uncontested family law trial, which dealt with custody, access, equalization, and sale of the matrimonial home.

The court applied the three-part test under Rule 19.08 of the Rules of Civil Procedure (by analogy to Family Law Rules 1(7)): timeliness, plausible explanation for default, and arguable defence on the merits.

The court found Rebecca met all three criteria, noting her lack of awareness of deadlines and consequences of default, and significant discrepancies in evidence regarding child care, finances, and spousal support.

The default order was set aside, and terms were imposed for filing materials and proceeding to a case conference, with interim custody/access terms maintained.

The court determined costs following a temporary custody motion where the respondent father achieved substantial success by obtaining joint custody and increased parenting time, contrary to the applicant mother's request for sole custody.

Both parties made offers to settle, but neither achieved a result more favourable than their offer.

The court awarded the respondent father partial indemnity costs fixed at $5,000, payable from the equalization payment owing to the applicant mother.