Jennifer Watson

Following the dismissal of a family law appeal concerning a custody order granting the father sole custody and denying the mother access pending further order, the court addressed the issue of costs.

The successful party sought costs of the appeal pursuant to Rule 24(1) of the Family Law Rules.

The court confirmed the presumption that a successful litigant is entitled to costs and found that counsel’s hourly rate and time spent were reasonable given the volume of material.

Although the court accepted that the appellant’s financial circumstances were a relevant factor, it held that the respondent’s pro bono retainer with counsel did not mitigate entitlement to costs.

Fixed costs of $30,000 were awarded to the successful party.

The mother appealed a trial judge's order granting sole custody of the child to the father and denying the mother access pending further order.

The mother argued the trial judge misapprehended the evidence and erred in law by making an unrequested no-access order.

The Superior Court of Justice dismissed the appeal, finding the trial judge made no reviewable errors, properly applied the best interests of the child test, and had the authority to order no access given the child's anxious attachment to the mother.