Mark Power

The Court of Appeal previously dismissed the appellant's appeal regarding child custody and the language of instruction, and requested written submissions on costs.

The appellant argued he was successful on the critical issue of the importance of the children's language of instruction, despite the appeal being dismissed due to the children having remained in French immersion for three additional years.

The respondent argued she was entirely successful and sought $25,000 in partial indemnity costs.

The court applied the usual rule that the successful party is entitled to costs, but reduced the respondent's award to $20,000 on a partial indemnity basis to reflect the appellant's partial success in demonstrating an error by the trial judge.

The appellant father appealed a trial decision granting sole custody of the parties' three children to the respondent mother.

The father argued the trial judge erred by failing to consider ordering the children to attend a homogeneous French-language school as a condition of custody.

The Court of Appeal found that the trial judge did err in failing to consider such a condition, as the language of education is an important factor in the children's best interests.

However, the Court declined to order a change of schools on appeal, concluding that given the passage of time, it would no longer be in the children's best interests to disrupt their current education in a French immersion program.

The appeal was dismissed.

The respondent in a family law appeal brought a motion for security for costs and an adjournment.

The appellant, who had been denied joint custody at trial, appealed primarily on the basis that the trial judge failed to properly consider his section 23 Charter rights regarding French language education for the children.

The appellant had declared bankruptcy shortly after the trial, avoiding a significant costs award.

The Court of Appeal found that while the appeal was not frivolous, it had a very low prospect of success.

Given the appellant's conduct, bankruptcy, and the low prospect of success, the court ordered the appellant to post $15,000 in security for costs and granted a short adjournment of the appeal.