Chukwuma Chuks Oriuwa

The mother appealed a motion judge's decision regarding retroactive child support and imputed income.

The motion judge had denied the mother's request for retroactive support prior to October 2019, finding that the father had made payments for airline tickets and a lump sum that offset the amount owed.

The motion judge also imputed an income of $30,000 to the mother and ordered her to pay child support for the child in the father's care.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or exercise of discretion.

The court issued a costs endorsement following the dismissal of the applicant's motion to change a prior judgment.

The court found the applicant to be the primary instigator of ongoing litigation and unreasonable conduct, though the respondent's conduct was also noted as unreasonable at times.

The respondent was awarded partial indemnity costs, fixed at $37,240.45, with the court rejecting the applicant's claims of undue hardship and impact on children's best interests as grounds to deny costs.

The court issued supplementary reasons following the dismissal of Elena Albergaria's motion to change a prior judgment, addressing outstanding issues of child and spousal support, including overpayments/underpayments, and Section 7 expenses.

The court affirmed its jurisdiction to issue these reasons before a formal order was perfected, correcting an oversight.

It determined Elena was entitled to spousal support for an additional two years, calculated future support amounts based on the parties' incomes and prior agreements, and adjusted for Daniel's significant overpayments in both spousal and child support.

Future Section 7 expenses were also allocated.

The applicant brought a motion to change the spousal and child support provisions of a 2012 consent order that incorporated a separation agreement.

She argued that the respondent's receipt of a retroactive lump sum payment following a firefighter arbitration constituted a material change in circumstances.

The court dismissed the motion, finding no legal basis to set aside the agreement and holding that the possibility of a retroactive wage increase was known or ought to have been known when the agreement was signed, thus failing to meet the threshold for a material change.