Shannon Anderson

Following a successful motion to change a temporary custody order, the applicant sought her costs on a full recovery basis, arguing the respondents acted in bad faith.

The court found the respondents' conduct was unreasonable but did not rise to the level of bad faith, awarding costs on a partial indemnity scale.

The court also held that the applicant's lawyer's hourly rate was not limited to the Legal Aid rate, and adjusted the maximum partial indemnity rate for inflation.

The respondents were ordered to pay costs of $23,196.58.

The applicant mother brought a motion to vary a temporary, without prejudice consent order that had placed the children in the primary care of the respondent father and paternal grandparents due to the mother's drug addiction and PTSD.

After three years of treatment, the mother sought temporary sole custody.

The Office of the Children's Lawyer recommended returning the children to the mother, citing the father's ongoing substance abuse issues and the grandparents' inability to co-parent with the mother.

The court held that because the prior order was made on a 'without prejudice' basis, the mother was not required to prove a material change in circumstances under s. 29 of the Children's Law Reform Act.

The court also ruled that a critique of the OCL report tendered by the father was inadmissible.

Finding that the mother was best equipped to meet the children's needs and foster their relationship with the father's family, the court granted temporary sole custody to the mother with a specified access schedule for the respondents.