Graeme Fraser

The applicant wife moved for an order under the Partition Act for the sale of the jointly owned matrimonial home prior to trial.

The respondent husband opposed the motion, relying on a temporary without prejudice consent order that granted him exclusive possession.

The court held that a material change in circumstances was not required to vary a temporary without prejudice order.

Finding that the husband had no competing interests under the Family Law Act that would defeat the wife's prima facie right to sale, the court granted the motion and ordered the home to be listed for sale.

Following an earlier costs decision directing the respondent to file a proper Bill of Costs, the court considered the respondent’s revised submission.

The submission included extensive additional materials beyond the requested Bill of Costs, which the court declined to consider.

The court found the claimed full indemnity costs of over $52,000 excessive relative to the proportionality of the dispute, which concerned whether $125,000 should be shared between the parties.

After accepting disbursements but rejecting certain fee claims and finding the hours excessive, the court determined reasonable full indemnity costs to be $25,000 and fixed partial indemnity costs accordingly.

The applicant was ordered to pay the respondent $16,000 inclusive of disbursements and HST.

Following a family law trial concerning property division and equalization, the court addressed the issue of costs.

The principal dispute at trial concerned whether the respondent’s cottage constituted a matrimonial home for purposes of calculating Net Family Property.

The court found that the applicant had advanced an unfair claim regarding the cottage which significantly prolonged the litigation.

Although neither party beat their formal settlement offers, the court determined that the respondent was the successful party and entitled to costs.

However, the court declined to assess the amount due to inadequate cost submissions and directed the respondent to file a proper bill of costs.

The parties separated after a 20-year marriage.

The applicant sought to have the respondent's cottage, which he owned prior to marriage, declared a second matrimonial home under s. 18(1) of the Family Law Act.

The court found that while the parties ordinarily used the cottage during the summer, the applicant never treated it as a family residence, making no financial or maintenance contributions.

Thus, the cottage was not a matrimonial home, allowing the respondent to deduct its pre-marriage value from his net family property.

The court also ordered the inclusion of the respondent's survivor pension benefit in his NFP and dismissed his claim for occupation rent.

The applicant sought to retroactively vary a divorce judgment requiring monthly spousal support and to rescind accumulated arrears exceeding $300,000.

The court held that a variation requires proof of a material change in circumstances and applied the definition from Willick v. Willick.

The evidence established that since 2005 the applicant’s income was minimal and he lacked the ability to pay ongoing support, justifying a reduction of support to zero effective January 2005.

However, due to inadequate disclosure and lack of evidence regarding earlier years, the court declined to vary the order prior to that date.

Arrears accumulated between January 2005 and October 2012 were eliminated, while earlier arrears remained owing.