D. Olsen

Following an earlier endorsement resolving a motion regarding the release of funds from the proceeds of sale of a matrimonial home to address a tax debt owed to the Canada Revenue Agency, the parties provided written submissions on costs.

Each party asserted that they were the successful party and sought partial or substantial indemnity costs under Rule 24(1) of the Family Law Rules.

The court reviewed the circumstances of the underlying motion, including the respondent’s decision to seek funds from trust rather than pursue variation of a prior order restricting depletion of RRSPs and the applicant’s litigation conduct.

The court concluded that neither party could be fairly characterized as the successful party.

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

In a family law proceeding following the sale of the matrimonial home, the respondent husband sought an interim advance from the net sale proceeds held in trust to satisfy outstanding tax liabilities owed to the Canada Revenue Agency.

The motion was effectively for an advance on equalization.

The court reviewed the principles governing such relief, including the factors identified in Zagdanski v. Zagdanski and subsequent jurisprudence, requiring certainty that the advance would not exceed the eventual equalization entitlement and a demonstrated need for the funds.

Given conflicting evidence regarding the parties’ net family property calculations, disputes over the appropriate valuation date, and the existence of significant RRSP assets available to the moving party, the court found insufficient certainty and necessity to justify an advance.

The motion for payment from the trust funds was therefore dismissed.

In a family law trial, the court addressed outstanding issues including the calculation of the equalization payment, entitlement to child tax benefits, and costs.

The applicant argued that the respondent's valuation-day debt should be reduced based on hindsight evidence of a post-separation consumer proposal.

The court rejected this argument, holding that hindsight evidence cannot be used to alter the actual value of a debt at the date of separation.

The court also found the respondent was the primary caregiver for the first year post-separation and entitled to full child tax benefits for that period.

The respondent was highly successful on the property issues and was awarded costs of $30,000 plus HST.