John Opolko

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.

Following a successful appeal from a Small Claims Court judgment, the appellant sought partial indemnity costs of $7,549.16.

The respondents argued the amount was not proportional to the $25,000 in dispute and requested costs be awarded only against two of the three respondents.

The Divisional Court found the requested amount reasonable and proportionate, noting the complexity of the appeal.

Costs were awarded to the appellant in the requested amount against all respondents.

The purchasers of a residential property and the vendor brought a Small Claims Court action against the vendor's real estate agent and the contractor hired by the vendor to perform renovations.

The trial judge awarded damages against both the agent and the contractor for negligent misrepresentation and defective work.

The contractor appealed.

The Divisional Court allowed the appeal, finding that the trial judge erred in law by treating the contractor as an agent and finding a special relationship where none existed.

The contractor had no contractual relationship with the purchasers, and his liability was solely to the vendor, who had suffered no damages.

The appellant mother appealed an order varying a custody and access order that changed the child's primary residence to the respondent father.

The Court of Appeal allowed the appeal, finding that the motion judge lacked jurisdiction to vary the order because there was no explicit finding of a material change in circumstances.

Furthermore, the motion judge erred by resolving conflicting affidavit evidence without a trial and by failing to adequately consider the child's best interests.

The original custody order was restored following a six-week transition period.