Daniel Gordon Pole

The court considered costs following a six-day family law trial where the father's motion to change a final order was partially granted, resulting in expanded access and reduced ongoing child support, but no retroactive reduction or arrears adjustment.

Both parties sought costs on different bases (substantial indemnity for the mother, partial indemnity for the father).

The court found mixed success for both parties, noted past unreasonable conduct by both, and observed that neither party achieved a result as favourable as their offers to settle.

Consequently, the court ordered that each party bear their own costs.

This case involves a father's motion to change a 2010 final order concerning custody, access, and child support for his two sons.

The mother unilaterally relocated with the children to Elmira, violating a previous court order.

The court found a material change in circumstances due to the relocation, necessitating a fresh inquiry into the children's best interests.

The father was granted expanded access during March Breaks and an additional week in summer, along with electronic access, but his request for three consecutive weekends per month was denied.

The court dismissed the father's request for a retroactive reduction in child support arrears due to his poor payment history and delay.

However, the father's ongoing child support obligation was reduced by imputing his annual income at $50,000, down from the previously attributed $60,000.

The court also addressed the preliminary issue of the father's capacity to litigate as an undischarged bankrupt, confirming that family law claims for custody, access, and child support are not barred.

The respondent (mother) brought a motion for interim child support and interim spousal support under the Family Law Act.

The parties cohabited from June 2007 until summer 2012 and have one child with equal shared residential care.

The primary dispute concerned the applicant's income for child support calculation purposes: the applicant argued for $66,138 based on year-to-date 2014 earnings, while the respondent argued for $72,328 based on the applicant's 2013 tax return.

The court determined that the applicant's income should be $72,328 pursuant to section 16 of the Child Support Guidelines, declining to adjust under section 17 based on the presumptive reliance on tax return income and the minimal difference in monthly support ($60).

The court ordered interim child support of $403 per month effective June 1, 2014, but declined to award interim spousal support, finding insufficient evidence and noting the respondent had managed without spousal support since separation.

The applicant mother sought retroactive and ongoing child support as well as a proportionate share of private school tuition fees for the parties' eight-year-old son.

The father agreed to pay ongoing guideline support but opposed retroactive support beyond the date of service and refused to contribute to private school fees.

The court declined to award retroactive support prior to December 1, 2012, finding the mother's delay in pursuing the claim was not sufficiently justified despite her safety concerns.

The court also declined to order the father to contribute to private school fees, finding the expense was not necessary and represented a choice by the mother rather than a genuine need that could not be met in the public system.