Brinley Evans

Following a successful appeal that set aside a trial judgment awarding spousal support to the respondent wife, the appellant husband sought trial costs of over $250,000 and appeal costs of nearly $50,000.

The Court of Appeal declined to award costs to the husband despite his success and his offers to settle.

The court found that the costs sought were grossly excessive and that a costs award would have a devastating effect on the impecunious wife, destroying any chance she had to achieve financial self-sufficiency.

The court ordered each party to bear their own costs.

The parties executed a separation agreement containing an explicit release of spousal support and a provision for recalculating child support if the husband's income materially increased.

Years later, the wife sought spousal support after the husband's income increased significantly.

The trial judge implied a term requiring the husband to disclose income increases, linked it to the spousal support release, and awarded retroactive and future spousal support.

The Court of Appeal allowed the husband's appeal, holding that a term cannot be implied if it contradicts an express term of the agreement.

The implied obligation to disclose income for spousal support purposes contradicted the express release of spousal support.

The wife brought a motion to dismiss her husband's appeal of a divorce judgment on the basis that he had failed to pay monthly spousal support since the appeal was heard.

The husband argued his income had declined and his capacity to pay had eroded.

The Court of Appeal dismissed the motion without costs, noting that there were important issues to be decided in the appeal and that the court was releasing its judgment on the main appeal concurrently.