Carole Curtis

The appellant father appealed a trial judgment that awarded sole custody of the parties' three children to the respondent mother, imputed income to him for child support purposes, awarded open-ended spousal support, and determined the equalization of net family property including a farm.

The Court of Appeal upheld the custody award and the finding of intentional underemployment, noting the trial judge was in the best position to assess the evidence.

However, the Court allowed the appeal regarding spousal support and property equalization, finding the trial judge's reasons were inadequate to permit appellate review.

Those issues were remitted for a new trial.

The Supreme Court of Canada considered four appeals regarding retroactive child support.

The Court held that parents have a free-standing obligation to support their children commensurate with their income, and courts have the jurisdiction to order retroactive child support under both the Divorce Act and provincial legislation.

In determining whether to make a retroactive award, courts must balance the payor parent's interest in certainty with fairness to the child by considering the reason for the recipient parent's delay, the payor parent's conduct, the child's past and present circumstances, and potential hardship.

The Court allowed the appeals in D.B.S. and T.A.R., restoring the chambers judges' decisions to deny retroactive support, and dismissed the appeals in Henry and Hiemstra, affirming the retroactive support awards.

In a costs endorsement following an appeal, the Court of Appeal noted that success in the proceedings was divided.

The appellant succeeded on his appeal to the Court of Appeal, but the Divisional Court had correctly held it lacked jurisdiction to hear the appeal.

Considering the divided success and the disparity in income between the parties, the Court ordered no costs for the proceedings in either court.

The lower court's costs order was set aside and reserved to the judge hearing the application to vary.

The appellant father appealed an interim order that retroactively increased his child support obligations based on his substantially increased income.

The motions judge had recalculated the support under the Federal Child Support Guidelines without finding a material change in circumstances or a pressing need for the children.

The Court of Appeal allowed the appeal, holding that the Guidelines do not provide an inherent discretion to retroactively recalculate support based solely on an undisclosed increase in income.

A retroactive increase requires a finding of a change in circumstances, ability to pay, and evidence of the children's need during the relevant period.

The respondent wife was substantially successful on appeal and sought costs on a substantial indemnity basis.

The Court of Appeal held that substantial success alone does not warrant substantial indemnity costs.

Taking into account the different degrees of success, the court awarded the respondent costs of $15,000 on a partial indemnity basis.

The appellant appealed a motion judge's order continuing spousal support at $3,500 per month, refusing to rescind arrears, awarding a $10,000 lump sum, and ordering 10% of future bonuses to the respondent.

The Court of Appeal upheld the monthly support and the refusal to rescind arrears, finding no error in the motion judge's assessment of the significant disparity in the parties' standards of living.

However, the Court allowed the appeal regarding the lump sum, finding no unusual circumstances to justify it, and struck the 10% bonus provision as it constituted double-counting since bonuses were already factored into the monthly support amount.

The appellant appealed an order for retroactive child support in the amount of $42,917.88 to the Divisional Court, characterizing it as an interlocutory order.

The Divisional Court raised the issue of its own jurisdiction and determined that the order was final, as it finally determined the issue of retroactivity for the years 1998 to 2001.

Because the order was final and for a single payment of more than $25,000, the Divisional Court lacked jurisdiction under section 19 of the Courts of Justice Act.

The appeal was adjourned and transferred to the Court of Appeal for Ontario.

The mother sought leave to appeal a trial judge's decision regarding costs in a lengthy child protection proceeding.

The trial judge had dismissed the Society's application for Crown wardship and returned the child to the mother, but only awarded the mother costs for procedural delays, not substantive issues, despite the mother beating her offer to settle.

The Divisional Court dismissed the application for leave to appeal, finding that the trial judge reasonably exercised her discretion in balancing the Society's mandate under Rule 24(2) with the offer to settle provisions in Rule 18(14).