Ashley Timm

This costs endorsement addresses the allocation of costs following a family law appeal in which the appellant, Eleanor Dawn Hendriks, was substantially successful.

The Court of Appeal for Ontario awarded her costs for both the appeal and the underlying motion, reversing the motion judge’s previous order that required her to pay costs to the respondent.

The court found that the appellant was the more successful party and that the respondent did not meet the burden to show his settlement offers were more favourable.

The court also found that the appellant, as a self-represented litigant, was not unreasonable in her conduct.

The appellant sought to vary a 2015 consent order (Mossip Order) regarding child and spousal support after the respondent's income significantly increased post-separation.

The motion judge dismissed the variation request.

On appeal, the Court of Appeal found the motion judge misapprehended evidence regarding child support overpayments, leading to arrears.

The Court also found the motion judge erred in law by concluding spousal support entitlement was solely contractual and by failing to consider the appellant's material change in circumstances.

The appeal was allowed in part: child support arrears were fixed, and spousal support was varied and made time-limited, while the refusal to order ongoing Table amount child support for adult children was upheld.

The appellant, Paul Dowdall, appealed an order denying his motion to enforce minutes of settlement for child and spousal support.

The motion judge refused enforcement due to Mr. Dowdall's intentional and material non-disclosure of a significantly higher-paying job offer before accepting the respondent's settlement offer.

The Court of Appeal upheld the motion judge's discretionary decision, emphasizing the fundamental duty of full and honest financial disclosure in family law negotiations.

The court found that the non-disclosure deprived the respondent of the opportunity to make an informed decision and withdraw her offer, leading to an unfair result.

The appeal was dismissed.

The respondent husband moved to enforce a spousal support settlement agreement with the applicant wife.

The wife resisted, alleging the husband failed to disclose a new, significantly higher-paying job before accepting her offer.

The court found the husband's non-disclosure of his impending employment change and substantial income increase to be deliberate and material.

This informational asymmetry compromised the wife's ability to negotiate fairly, leading to an unfair agreement.

The court exercised its discretion to refuse to enforce the settlement, emphasizing the fundamental duty of full and honest financial disclosure in family law.

The husband's motion for judgment was dismissed, and the matter was directed to proceed to trial.