CITATION: Campbell v. Campbell, 2026 ONSC 4560
COURT FILE NO.: FS-24-0001259-000 (Stratford)
DATE: 20260806
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
A.C.
Applicant
– and –
J.C.
Respondent
Matt Milczarczyk, for the Applicant
Brianne Kostal, for the Respondent
HEARD: July 28, 2026
ENDORSEMENT
[1] There are two motions before me. The respondent father seeks an order permitting him to register the parties’ daughter at a new school this fall, and he requests costs of the applicant mother’s abandoned motion regarding parenting, decision-making, child and spousal support.
[2] The father moves to vary the consent interim order of Dube J., dated June 13, 2025, pursuant to which the parents agreed to enrol their daughter, Ella[1] (born xx, 2021), at Alpine Public School in Kitchener, Ontario. He submits that it would be in Ella’s best interest to attend Shakespeare Public School in Stratford, Ontario.
[3] The mother lives in Kitchener, while the father lives in Stratford. Nevertheless, counsel for the father stressed that this is not a relocation motion in the guise of a school registration request. Each parent can remain in their current residences regardless of whether Ella attends Alpine or Shakespeare. Both parents will continue to share parenting of the child, in accordance with the order of Dube J.
[4] The mother submits that the father has not met the high threshold to vary an interim order. She states that there is no good reason to disrupt Ella’s school placement. By all accounts, Ella is doing well at Alpine.
[5] This motion does not arise in a vacuum. Since the making of the interim order, the father has moved into a home that he purchased in Stratford, within walking distance of Shakespeare. He lives there with his partner and her daughter, who is a year older than Ella. In addition, the investigator with the Office of the Children’s Lawyer (“OCL”) recently submitted her report and recommends that Ella attend Shakespeare beginning in September 2026.
[6] The broader context is one of significant acrimony between the parents, and of allegations by the father that the mother has unilaterally made medical and educational decisions for Ella since separation.
[7] With respect to the abandoned motion, the father asks for full indemnity costs of $7,296.97, on the basis of unreasonable litigation conduct.
[8] For the reasons that follow, I dismiss the father’s school registration motion, and award costs of the abandoned motion in the amount of $4,378.19.
Issue 1: Does the respondent need to establish a material change in circumstances to vary the order of Dube J.? If so, has the respondent met the threshold?
[9] The Family Law Rules, O. Reg. 114/99, use the term “temporary” to underscore the notion that temporary orders are not intended to be long-term solutions. They are by their nature imperfect solutions, based on limited and typically untested information. They are meant to provide “a reasonably acceptable solution to a difficult problem until trial”: Oxley v. Oxley, 2010 ONSC 1609, at para. 25; Chaitas v. Christopoulos, 2004 CanLII 66352 (Ont. S.C.).
[10] The variation of orders, even temporary orders, is governed by s. 17(5) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.). Section 17(5) provides that a court shall not vary an order unless there has been a change in the condition, means, needs or other circumstances of the child.
[11] The case law reflects two approaches to the variation of temporary orders.
[12] Some courts have held that “it is not a prerequisite in a motion to change a temporary custody/access/parenting order for a motion’s judge to adhere to a strict material change in circumstances test”: Calabrese v. Calabrese, 2016 ONSC 3077, at para. 27; Osama v. Sayegh, 2004 CanLII 22960 (Ont.S.C.), at para. 5. These cases state that a “compelling reason” necessitates a change to meet the children’s best interests.
[13] Other courts, however, have held that “it is not in the best interests of the child to make interim changes pending a full vetting of the evidence at trial and […] that changes to temporary orders will be rare”: Chyher v. Al Jaboury, 2021 ONSC 4358, at para. 22. Under this line of authorities, a motion to vary is not simply a motion to reconsider the children’s best interests. The moving party must meet the threshold of a “material change in circumstances” that compels a change in the parenting terms in the best interests of the child: Radojevic v. Radojevic, 2020 ONSC 5868, at para. 18; Miranda v. Miranda, 2013 ONSC 4704, at para. 26.
[14] I agree that the stricter “material change in circumstances” test applies to most temporary orders involving parenting terms. There are sound policy reasons for preferring the stricter approach, including that children need stability in their parenting arrangements, even on an interim basis. Requiring a material change in circumstances before varying these arrangements respects that need.
[15] The relief requested here, however, does not change the parenting arrangements. Both parents would continue to share parenting on a virtually equal basis, and they will continue to have joint decision-making authority.
[16] Not all temporary orders in the family law context are intended to carry an issue until trial. Family law issues by their very nature evolve over the course of litigation: Lacroix v. Meek, 2023 ONSC 3369, at para. 15. Ultimately, the court must be guided by the best interests of the child.
[17] To determine the true nature of a temporary order, the court must discern the intent behind the order in the event of ambiguity. The court should consider the wording of the order itself but also the broader factual context to assist in interpretation: Lacroix, at para. 19.
[18] The factual context of the order made by Dube J. is important. Unlike the temporary orders in many variation cases, His Honour’s order was on consent. The issue of which school better serves Ella’s interests has never been adjudicated. The father states that the order was made at a case conference, following significant conflict between the parents and attempts by the mother to enrol Ella at different schools without consulting him. He submits that he agreed to the consent order to avoid a motion and any delay in registering Ella in time for the start of the new school year.
[19] The broader context further supports the view that the consent order was not intended to take the parties to trial. The parties lived in Stratford before separation. In July 2024, the mother moved from Stratford to Kitchener with the child. Although the father lived temporarily in Waterloo with his mother from September 2024 until April 2025, he consistently communicated his intention to return to Stratford. He advised the mother in early April 2025 that he was moving back to Stratford. A month later, the mother signed a rental agreement for her accommodations in Kitchener.
[20] Importantly, the mother denies that when the parties separated, she advised the father that she intended to remain in Perth County, or that she similarly advised the Avon Maitland District School Board (“AMDSB”) that she was seeking to remain in Perth County. However, an email dated March 4, 2025, from the Learning Services Coordinator at AMDSB confirms the father’s version of events.
[21] In this context, I find that a threshold lower than a material change in circumstances is appropriate on the motion before me. There must be only a “compelling reason” necessitating a change to meet the child’s best interests.
[22] The father points to two such possible reasons: the recommendation of the OCL assessor, and Ella’s proximity to Shakespeare when she is in his care at his new home.
[23] Although OCL reports must be treated with some caution at an interlocutory stage of the proceeding, courts have repeatedly acknowledged that the facts the OCL clinician has gathered are useful at any stage, and a court should not turn a blind eye to them: Calabrese, at para. 22.
[24] In her report, which the mother has formally disputed, the assessor recommends that the father have primary residence and sole decision-making responsibility. Her recommendation that Ella attend Shakespeare is based on three factors: the school’s proximity to the father’s residence; the fact that Ella could attend the same school as the father’s partner’s daughter, with whom she has a sisterly relationship; and the erroneous assumption that Alpine is outside the mother’s catchment area.
[25] The father also placed great emphasis on Alpine being out of district of the mother’s residence. That information is incorrect. The documentary evidence the mother filed on the motion proves that Ella is not out of district and does not require special permission to attend Alpine.
[26] The other factors supporting the assessor’s recommendations are interconnected with the second change in circumstance, the father’s residence near Shakespeare.
[27] I accept that these are compelling reasons to reconsider which school would be in Ella’s best interest. As a matter of common sense, the purchase of a new home dictates a consideration of which school better serves a child. This is not a situation where a parent relocated in order to manufacture a change in circumstance. The evidence on the motion satisfies me that the parties intended to return to Stratford after separation. The father did so before the mother chose Alpine, without consulting the father. He consented to the temporary order because the timing of the case conference made an argued motion on the issue impractical for Ella to be able to start junior kindergarten on time.
[28] As a result, I find that the father has met the threshold for a variation of the order of Dube J.
Issue 2: Is it in Ella’s best interest to change schools?
[29] In Thomas v. Osika, 2018 ONSC 2712, at para. 37, Audet J. stated that when parents disagree, the decision with respect to the choice of school is ultimately a matter of judicial discretion. Her Honour summarized a number of general principles that have emerged from the case law to assist the court in making a decision that is in the child’s best interests. These include:
a. In developing a child’s educational plan, the unique needs, circumstances, aptitudes and attributes of the child must be taken into account;
b. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program;
c. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents;
d. The importance of a school placement or educational program to promoting the child’s linguistic and cultural heritage;
e. Whether there is any prospect of one of the parties moving in the near future and whether a move will mean new childcare providers or other unsettling features;
f. The court will look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling;
g. Any problems with the existing or proposed school will be considered;
h. Proximity to the residence of one parent or the other or their convenience are not determinative. A decision as to the choice of school should be made on its own merits and the child’s needs.
i. Third-party ranking systems should not factor into the court’s decision because these systems do not take into account the best interest of a particular child; and
j. If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason to do so. Before a court will order a child to transfer schools, there must be convincing evidence that the change is in the child’s best interests.
[30] Most of the factors in Thomas are neutral in the case at bar. The father has expressed no concerns about Alpine, and the parties agree that Ella is doing well there. The main question is whether the child’s needs will be met at Shakespeare. The extent of those needs is very much in dispute between the parents.
[31] Ella has been identified as being on the autism spectrum. The father questions this diagnosis. The staff at Alpine confirmed to the assessor that they were “overprepared” for Ella, and that she is ahead of her peers with fine motor skills, sustained attention and the ability to play cooperatively with her classmates. Her occupational therapist provides services on an as-needed basis outside of school hours. Ella has supports in place with Kids Ability in Kitchener and previously had supports in Perth.
[32] The mother submits that Ella is doing well at Alpine precisely because of the preparation that took place before she arrived. The mother has been primarily involved with Ella’s medical care. She was surprised by the autism diagnosis but has worked hard to put the relevant supports in place. In contrast, the father has not provided evidence that all of these supports will be available at Shakespeare in a timely way.
[33] There is no evidence of what inquiries or arrangements, if any, the father has made at Shakespeare for Ella’s potential arrival. Even if he disputes the extent of her needs, she has an IEP and agency supports; a child-centred approach favours continuity of those services until it is clear that she no longer needs them.
[34] More concerning is the issue of before and after school childcare. Because the mother works full-time and would be driving 30 to 40 minutes to drive Ella to and from Shakespeare, Ella must have a place in the school’s childcare program. The only evidence before me, a screenshot of the school board’s website, indicates that there may be a waiting list for such care at Shakespeare. The father adduced no evidence that Ella would have a spot in Shakespeare’s extended care program in September. Again, a child-centred approach dictates that childcare is not an afterthought.
[35] It is entirely possible that Ella would flourish at Shakespeare, as she has at Alpine. Shakespeare has the added advantage of being within walking distance of one parent’s home. I have no evidence that Alpine is the ‘neighbourhood school’; the mother drives the child ten minutes to school from her home. A child’s opportunity to build a local network of friends with whom they may socialize outside of school is a relevant consideration: Thompson v. Sorrenti, 2022 ONSC 2481 at para. 46. This factor thus favours Shakespeare.
[36] Any change of school must be considered from the child’s perspective. A school-age child will likely have already formed attachments to the school he or she attends, and continuing an existing school placement promotes stability in the child’s life: Ursic v. Ursic, 2006 CanLII 18349 (ON CA), at para. 32. On the other hand, a change in schools in the early years may well be less disruptive than a change in later years, when attachments are stronger.
[37] Weighing all of these factors, I find that remaining at Alpine for at least another year is in Ella’s best interest. But for the lack of evidence regarding educational supports for Ella’s needs and the availability of before and after school care at Shakespeare, I would have come to a different conclusion.
[38] The opportunity for a child to attend her neighbourhood school with a step-sibling is, all other things being equal, a good reason to order a change in school registration. However, on the evidence before me, all other things are not equal.
[39] The father’s motion is dismissed.
[40] If the parties cannot agree on costs, the mother shall submit her bill of costs and written submissions of no more than three double-spaced pages by August 25, 2026. The father shall submit his bill of costs and written submissions of equal length by September 8, 2026.
Issue 3: What is the appropriate cost award for the applicant’s abandoned motion?
[41] The father seeks full recovery costs of the mother’s abandoned motion, or $6,457.50, plus HST.
[42] Rule 37.09(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that where a motion is abandoned, a responding party is entitled to costs of the motion, unless the court orders otherwise. In setting the amount of costs, r. 24(14) of the Family Law Rules sets out the factors to be considered, including the importance of the issues, the reasonableness of each party’s behaviour, and time spent on the matter.
[43] The Court of Appeal has held that “proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs” in a family law case: Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, leave to appeal refused, [2019] S.C.C.A. No. 82.
[44] Rules 24(7), (8), (10) and (12) of the Family Law Rules expressly contemplate full recovery costs in specific circumstances, such as where a party has behaved unreasonably, in bad faith, or has beat an offer to settle: see also Beaver, at paras. 9-13. Substantial indemnity costs are awarded when the court wishes to express its disapproval of the conduct of a party to the litigation.
[45] Costs thrown away for an adjournment are generally payable on a full recovery basis: Pittiglio v. Pittiglio, 2015 ONSC 3603, at para. 5.
[46] The following chronology is relevant to determining costs of the abandoned motion:
a. On September 24, 2025, the mother requested the father’s consent to an order for the involvement of the OCL.
b. On September 29, 2025, the mother served a notice of motion and affidavit returnable October 6, 2025, seeking an order for OCL involvement, as well as orders related to parenting time, decision-making, child support, spousal support and disclosure. Counsel for the mother did not consult with the father’s counsel regarding the return date.
c. On September 29, 2025, counsel for the father advised opposing counsel that the father consented to OCL involvement. The mother’s lawyer sent the draft consent on October 15, 2025. Five days later, the father’s counsel sent an email advising that a 14B motion form was needed and suggested changes to the consent. The consent was revised that same day and was signed the following day.
d. On November 12, 2025, the father’s lawyer suggested holding off on scheduling the mother’s motion because a settlement conference had been scheduled for March 6, 2026, and because OCL involvement would likely impact the parties’ positions. The mother’s lawyer disagreed and scheduled the motion for February 18, 2026.
e. The father’s lawyer prepared and served the responding record on February 6, 2026, and drafted the factum.
f. On February 12, 2026, the mother’s lawyer requested that all matters in the motion be adjourned to the settlement conference.
[47] The father also relies on the mother’s allegedly unreasonable conduct, including:
a. The mother withheld the child for more than three weeks in the summer of 2024, despite being told by the Children’s Aid Society that there were no concerns with the father’s parenting time.
b. The mother withheld the child for five days in December 2024.
c. The mother refused to agree to an interim disbursement from the proceeds of sale of the matrimonial home until the father served a notice of motion and affidavit, at which point she consented.
[48] The mother disputes the father’s characterization of the conduct listed in the preceding paragraph but does not deny the chronology of steps in the litigation outlined in para. 46, above. She submits that a reasonable cost award would be $2,500, including HST.
[49] There were several aspects of the mother’s motion that resulted in costs being thrown away. Her motion for an order requesting OCL involvement was unnecessary given the father’s consent. Her request for interim orders relating to parenting and decision-making were unreasonable given the consent order in place dated June 13, 2025, her acknowledgement that OCL involvement would inform the issues, and her ultimate, albeit belated, agreement that the issues should be adjourned to the settlement conference.
[50] I find, therefore, that the work performed to prepare for those aspects of the motion was incurred by reason of the mother’s unreasonable litigation behaviour, and should be compensated on a substantial indemnity basis.
[51] Other aspects of the father’s bill of costs relate to disclosure and to the preparation of the net family property statement, both of which were necessary for the conduct of the litigation. Any costs related to these steps should be determined as part of the overall costs of the litigation at its conclusion. Similarly, the father’s allegations about the mother’s other behaviour, such as withholding the child and refusing to consent to an interim distribution of the sale proceeds, are matters better addressed at trial.
[52] I find that the time spent by the father’s lawyer on the abandoned motion was reasonable. The mother does not dispute the hours spent or hourly rate charged.
[53] I am reducing the father’s bill by 25 per cent to account for work not specifically related to the abandoned motion. Eighty per cent of this amount is payable on a substantial indemnity scale. Thus, costs are calculated as follows: $6,457.50 x .75 x .80 = $3,874.50. With HST, the amount to be paid by the mother to the father is $4,378.19. This amount is payable within 30 days of the costs disposition on the father’s unsuccessful motion, to account for any set-off that might be ordered or agreed upon.
Jasminka Kalajdzic
Justice
Released: August 6, 2026
CITATION: Campbell v. Campbell, 2026 ONSC 4560
COURT FILE NO.: FS-24-0001259-000 (Stratford)
DATE: 20260806
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Amanda Campbell
and
Joel Campbell
ENDORSEMENT
Kalajdzic J.
Released: August 6, 2026
1Ella is not the child’s real name. The pseudonym is used instead of initials for ease of reading.