Koncz v. Li, 2007 ONCA 545

1This is an appeal from the order of Mr. Justice Langdon wherein he set aside the order of Madam Justice Van Melle and ordered costs on a full indemnity basis.

2The parties separated in March 2003 when their 2 children were 5 and 3 years old. In April 2004 they signed a separation agreement providing for joint custody of the children. It is significant that they included in the agreement a term that neither party would rely on any time spent by the other in China or elsewhere as a material change for the purposes of varying the agreement. The agreement included the usual clauses for dispute resolution, which referred to negotiation and mediation before third party resolution. The agreement was incorporated in the order of Fuerst J.

3As planned, and as provided for in the separation agreement, the mother returned temporarily to China in May 2004. She returned to Canada in March 2005 to spend March break with the children. She then went back to China planning to pack and move to Toronto in July 2005.

4In May 2005 the father moved for an order varying the final order for custody and granting him sole custody. Although he claimed to have served the mother at the address provided by her for purposes of the uncontested divorce application, the motion judge found that he misrepresented to the court that it was her address. He knew she was in China.

5On July 4, 2005 he attended a case conference before Van Melle J. The information before Van Melle J. was that the mother had returned to China “where she has resettled and resumed her life there” (father’s affidavit of April 21, 2005). He apparently did not bring the provisions of the separation agreement to the court’s attention.

6An uncontested order was signed by Van Melle J. varying the joint custody order and granting the father sole custody. Clearly, under these circumstances, the order cannot stand.

7The motion judge was correct to set aside the order of Madam Justice Van Melle. At the time of the case conference there had been no material change in circumstances. The mother did not receive proper notice and the court did not have all the information.

8We see no error with respect to his order with respect to costs. The appeal is therefore dismissed with costs payable to the respondent in the amount of $4,000, all inclusive.