Mr. Hoare

This is Part 2 of a judgment resolving outstanding family law issues following initial findings.

The court determined retrospective and ongoing child and spousal support payments, the tax treatment of retroactive spousal support, and the duration of spousal support.

It also addressed equalization payment calculations, including contingent tax liabilities on corporate and cottage assets, and post-equalization adjustments related to a joint line of credit.

The court clarified that new expert reports not presented at trial could not be relied upon for proving contingent tax liabilities.

This decision addresses the quantum of costs following a successful trial for the applicant.

The applicant sought over $105,000 in total costs, while the respondent argued for a limit of $25,000, citing financial hardship and proportionality.

The court, applying Rule 57 factors and the principle of proportionality, awarded the applicant $40,000 for fees and $7,500 for disbursements plus HST, finding the applicant's requested amount excessive despite the reasonableness of counsel's hourly rate and the applicant's success at trial.

The parties separated after a 27-year marriage during which the applicant primarily raised their children and assisted in building the respondent's financial advising business.

The applicant, now disabled by fibromyalgia, sought spousal support and equalization of net family property.

The court ordered spousal support at the high end of the Spousal Support Advisory Guidelines, retroactive to the date of separation, finding the applicant's delay in seeking support was reasonably explained by her health and financial circumstances.

For equalization, the court accepted the applicant's expert valuation of the respondent's business, which included significant value for the goodwill in his book of business, and ordered an equalization payment of $278,316.85.

Following the dismissal of the plaintiffs' action after a 26-day trial, the successful defendant sought costs on a substantial indemnity basis.

The plaintiffs argued the defendant should be deprived of costs because two of its witnesses gave untruthful evidence.

The court declined to award substantial indemnity costs, finding the plaintiffs' conduct was not egregious.

The court also refused to completely deprive the defendant of costs, but applied a 10% reduction to the fee award to sanction the untruthful testimony.

The court significantly reduced the defendant's claimed expert witness disbursements, finding them grossly excessive, and fixed total fees at $483,300 plus disbursements and HST.

The appellants, pig farmers, purchased gilts and boars from the respondent.

The animals arrived sick and infected the appellants' herd.

The trial judge found the respondent breached the implied warranty of fitness under the Sale of Goods Act but dismissed the appellants' counterclaim for damages, finding they failed to prove their loss.

The trial judge relied on CAIS records rather than the PigCHAMP records used by all experts.

The Court of Appeal held the trial judge erred in his assessment of damages by relying on records without explanatory evidence and failing to resolve differences in the experts' assumptions.

The Court also found the trial judge erred by failing to determine the number of free replacement animals promised.

A new trial was ordered on the issues of damages and the balance owing.

The defendants brought a motion to adjourn a scheduled trial in a professional negligence action arising from legal and accounting advice provided in connection with a corporate reorganization that allegedly caused adverse tax consequences.

The defendants argued that the plaintiffs’ damages theory had expanded late in the litigation to include business losses, requiring a responsive expert report and further discovery.

Applying Rule 52.02 and the factors set out in Ariston Realty Corp. v. Elcarim, the court held that proceeding without the defendants’ damages expert would be fundamentally unfair.

A brief adjournment was available and no non-compensable prejudice to the plaintiffs was established.

The interests of justice therefore required that the trial be adjourned.