Carol L. Hartman

This decision addresses costs for two prior motions in a family law matter.

The court found that success was divided on both the initial motions concerning income, child, and spousal support, and a subsequent motion to correct mathematical errors.

Neither party's offer to settle met the criteria for special costs under the Family Law Rules.

The court also considered the parties' conduct, noting that both contributed to the complexity of the litigation.

Ultimately, the court ordered that each party bear their own costs for the motions.

The applicant brought a motion under Rule 25(19)(b) of the Family Law Rules to correct alleged mathematical errors in the court's previous decision regarding child and spousal support.

The court found that while it did not intend to gross-up the pre-tax income as the applicant suggested, it did make an inputting error in the DivorceMate software.

The court exercised its discretion to correct the error, resulting in adjusted monthly child support of $1,719 and spousal support of $2,478.

The parties brought cross-motions to determine interim child and spousal support, requiring the court to determine their respective incomes.

The respondent's income was set at $154,350 based on a three-year average of pre-tax corporate income available to him, rather than his most recent tax return.

The applicant's income was set at $40,468, which included her employment income and imputed rental income, but the court declined to impute further income for underemployment.

The court ordered interim child support of $1,692 per month and spousal support of $2,170 per month, effective November 2021.

The respondent husband brought a motion for summary judgment seeking to dismiss the applicant wife's application for spousal support, equalization of net family property, and to set aside a separation agreement.

The respondent argued that the wife's claims were barred by res judicata and abuse of process, as a divorce judgment had already been granted.

The applicant contended that the issues of support and equalization were never adjudicated in the divorce application.

The court dismissed the respondent's motion for summary judgment, finding that res judicata did not apply because the specific issues of support and pension entitlement were not previously adjudicated, and the Family Law Act permits such claims within two years of divorce.

In a custody and access dispute between separated parents, the court determined that joint custody should be ordered with equal shared parenting time on a week-about basis.

The applicant mother sought to increase her custodial time from the unequal arrangement established in a separation agreement executed when she was residing in Alberta.

The respondent father opposed equal shared parenting, arguing the current arrangement was working well.

The court found that the children's expressed wishes to spend more time with their mother, combined with the best interests analysis under the Children's Law Reform Act, supported equal shared parenting despite the father's concerns about the mother's ability to assist with French homework and supervision.

The applicant mother brought a motion for interim orders regarding access, child and spousal support, and the distribution of proceeds from the sale of the matrimonial home.

The parties separated after the respondent father seriously assaulted the mother, for which he pleaded guilty.

The court ordered gradually increasing unsupervised access for the father, finding no risk of harm to the child.

The court ordered the proceeds from the sale of the matrimonial home to remain in trust.

For interim support, the court imputed the father's consulting income at his 2013 level and ordered spousal support at the high end of the Spousal Support Advisory Guidelines until the matrimonial home is sold, along with child support.

Following a family law motion and cross-motion concerning custody and child support issues, the court addressed costs.

The applicant was largely successful, with the respondent’s claims dismissed except for joint custody, which the applicant had already been prepared to accept.

Applying Rule 24 of the Family Law Rules, the court held that a successful party is presumptively entitled to costs and considered the respondent’s unreasonable litigation conduct, including failure to accept reasonable settlement offers and failure to disclose a substantial employment bonus prior to the motion hearing.

Although the court declined to find bad faith, it concluded that the respondent’s conduct warranted significant costs consequences.

Costs were fixed at $7,500 inclusive of fees, disbursements, and HST.

The applicant mother brought a motion to change the temporary parenting schedule and for table amount child support.

The respondent father brought a cross-motion for shared custody and child support under section 9 of the Child Support Guidelines.

The court declined to change the existing parenting schedule, finding no compelling evidence that a change was in the children's best interests.

The court held that the father did not meet the 40% threshold under section 9, as time the children spent in school or daycare was credited to the mother as the primary caregiver.

The father was ordered to pay the table amount of child support, with the issue of retroactive support adjourned to trial.