Bryan Delaney

The respondent to a prior support order brought a motion to vary a consent order governing child and spousal support, arrears, life insurance obligations, and costs.

The consent order had established a mechanism requiring an independent business valuator to annually determine the payor’s guideline income to avoid further litigation.

The court held that varying the order would require determining income in a manner inconsistent with the parties’ agreed mechanism and found no justification to depart from it.

Arguments relying on the principles in Boston v. Boston regarding equalized assets were rejected because income from a business does not deplete the capital asset.

The motion to vary was dismissed, while the opposing party’s cross‑motion succeeded, fixing arrears based on expert reports and ordering security for support due to the payor’s persistent non‑compliance.

The Children's Aid Society brought a motion to enforce a settlement of an appeal in a child protection matter.

The appellant father had offered to withdraw his appeal if the Society undertook to place the child for adoption in Canada, with the offer open until one minute after the commencement of the appeal.

The appeal was called but adjourned to appoint counsel for the child, without any argument on the merits.

The Society subsequently accepted the offer.

The Divisional Court held that the appeal had not commenced, the offer remained valid, and enforcing the settlement was in the child's best interests.

The appellant appealed an order denying her motion to set aside an ex parte order that amended a consent order regarding the division of her pension.

The original consent order required the appellant to transfer $60,000 of her pension credits to the respondent to equalize net family property.

Because the pension plan could not transfer credits, the respondent obtained an ex parte order assigning 38.78% of the pension without a $60,000 cap.

The Divisional Court found the motions judge made a palpable and overriding error of fact by concluding the parties intended to transfer a stream of income beyond $60,000.

The appeal was allowed and the ex parte order was set aside.