Donald W. Kilpatrick

The responding party moved at the outset of trial to dismiss the moving party’s motion to change spousal support obligations.

The moving party had failed to provide updated financial disclosure required under the Family Law Rules, including a current financial statement, tax return and notice of assessment, and financial information relating to his current spouse.

The court held that such disclosure was essential to determine whether a material change in circumstances existed under s. 37(2) of the Family Law Act and to assess the parties’ means under s. 33(9).

The court found the disclosure failures unjustified and noted the moving party had also ignored a prior direction from a trial management conference judge to provide updated disclosure.

Because the absence of disclosure prevented a fair adjudication of the motion to change, the court dismissed the motion.

Following a family law trial concerning equalization of net family property and spousal support, the court determined costs.

The applicant was found to be the more successful party on both the property equalization issues and the spousal support issues, including the valuation date dispute and the limitation of the respondent’s support claim.

The court also considered the respondent’s unreasonable litigation conduct and delay in providing financial disclosure.

While the applicant sought full indemnity costs exceeding $131,000, the court applied proportionality and the respondent’s financial circumstances in assessing a reasonable award.

Costs were fixed at $60,000 inclusive of HST and disbursements, with funds held in court applied toward the payment.

The court addressed a recurring procedural issue concerning the inclusion of annual financial disclosure provisions in child support orders.

The court examined the distinction between the Federal Child Support Guidelines under the Divorce Act and the Ontario Child Support Guidelines under the Family Law Act.

It held that the mandatory annual disclosure requirement in s. 24.1 of the Ontario Guidelines applies only to child support orders made pursuant to the Family Law Act and should not be inserted into orders made under the Divorce Act.

Where parties have already agreed to an annual disclosure regime in minutes of settlement, inclusion of the statutory anniversary-date disclosure clause is unnecessary.

The court signed the final order without reference to s. 24.1 because the parties’ settlement already provided detailed disclosure provisions.

The applicant wife and respondent husband disputed the valuation date for equalization and the husband's entitlement to spousal support.

The court found the marriage had broken down by May 2008, as the parties had ceased intimate relations, the husband was chronically unemployed, and the wife paid all expenses.

The court valued the wife's pension based on a projected retirement at age 65.

The court denied the husband's claim for indefinite spousal support, finding the wife had already fulfilled her obligations by supporting him for years post-separation.

The court terminated spousal support retroactively to March 2014 and credited the wife for overpayments made under an interim order against the equalization payment owed to the husband.

Following dismissal of a motion to change support due to the responding party’s failure to provide court‑ordered financial disclosure, the court determined costs.

The successful party sought over $14,000 attributable to the motion, relying in part on an alleged offer to settle.

The court declined to apply the automatic cost consequences of the Family Law Rules because the offer was not produced and the arrears calculations were acknowledged to be inaccurate.

While the responding party’s failure to disclose financial information was found to be unreasonable, it did not amount to bad faith.

Applying the principle of reasonableness and considering partial success obtained on some issues, the court fixed costs at $6,500 inclusive of HST and disbursements and ordered the amount enforceable as a support order.