Thora Espinet

The court awarded costs to the paternal aunt following the dismissal of the father's motion to set aside a final custody order dated April 24, 2012.

The father's motion, filed in January 2013, sought to set aside the order and obtain temporary access to his child.

The paternal aunt filed a cross-motion for a restraining order.

The case proceeded through multiple court appearances and case conferences over approximately 20 months.

The paternal aunt made an Offer to Settle on January 20, 2014, offering to settle the motion if the father withdrew it and paid $2,500 in costs.

The father rejected the offer and proceeded to hearing, where his motion was dismissed.

The court found the offer was more favourable to the father than the final result and applied the costs consequences under subrule 18(14) of the Family Law Rules.

The court awarded costs of $8,800 inclusive of disbursements and HST.

The father brought a motion to set aside a final custody order dated April 24, 2012, which granted custody of the child to the aunt on a default basis.

The father claimed he was not properly served with the application and that the aunt committed fraud.

The court found that the father was properly served with the court documents, signed acknowledgement of service cards with full knowledge of their contents, and was well aware of the court case.

The court also considered the father's delay in bringing the motion, his failure to promptly pursue the motion while taking substantive steps in the case (the "fresh step" principle), and the prejudice to the aunt and child.

The motion was dismissed.