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.