Herschel I. Fogelman

Appeal of a motion judge's decision on a change motion brought by the wife following the husband's early retirement and acceptance of an early pension payout.

The motion judge dismissed the wife's claim for child support for the youngest child and varied spousal support to $5,000 per month, significantly below the Spousal Support Advisory Guidelines range of $6,000 to $8,000 per month.

The Court of Appeal allowed the appeal in part, dismissing the child support claim but allowing the spousal support appeal.

The appellate court found the motion judge erred in departing from the Guidelines based on the "good luck" of the early pension payout and the wife's alleged financial mismanagement.

The court also found the motion judge misapprehended the Guidelines ranges and the parties' positions on the unequalized pension value.

The Court of Appeal substituted an award of $20,000 per month for 2012 and $8,500 per month for 2013, with future support calculated by deducting 31.78 per cent of annual pension payouts from the husband's line 150 income.

The Applicant sought full indemnity costs of $21,661.06 for motions previously decided.

The Respondent argued for no costs or a proportional award.

The court reviewed the outcomes of the prior motions, noting the Applicant's success on significant issues like interim spousal support and production orders, and the Respondent's refusal of a settlement offer.

The court found the Respondent's overall litigation strategy to be one of delay, aiming to force a favourable settlement.

Consequently, the court awarded the Applicant $18,000 in costs, payable forthwith, to be treated as costs incurred to obtain spousal support, reflecting full indemnity less a minor adjustment for the Respondent's partial success on two minor motions.

The respondent brought a motion to sever the divorce from corollary relief.

The applicant opposed the motion on the basis that the respondent had failed to provide adequate financial disclosure and that reasonable arrangements for child support had not been made.

The court dismissed the motion, finding that under s. 11(1)(b) of the Divorce Act, it had a duty to satisfy itself that reasonable arrangements for child support were in place before granting a divorce, which could not be determined due to the respondent's lack of disclosure.

The applicant mother sought the return of her nearly six-year-old daughter to Trinidad under the Hague Convention on International Child Abduction.

The respondent father had wrongfully removed the child from Trinidad in November 2011 and retained her in Canada for approximately two and a half years without the mother's consent or acquiescence.

The father argued that Trinidad was not the child's habitual residence and raised defences under Articles 12 and 13 of the Convention, claiming the child was settled in her new environment and that return would pose a grave risk of harm.

The court found that Trinidad was the child's habitual residence, the removal was wrongful, the child was not sufficiently settled in Canada to invoke the Article 12 exception, and the Article 13 defences lacked credible evidence.

The court ordered the child's return to Trinidad in the mother's care.

The appellant father appealed a decision of the Ontario Court of Justice dismissing his motion to vary a separation agreement governing child support obligations and quantifying arrears for special expenses.

The father argued that a material change in circumstances existed due to a decline in his income and an increase in the mother’s means, and that the trial judge erred by failing to adjust his support obligations accordingly.

Applying the principles from Willick v. Willick and the deferential appellate standard described in Housen v. Nikolaisen and Hickey v. Hickey, the court held that the alleged financial deterioration was foreseeable and largely the result of the father’s own choices regarding employment and business ventures.

Because the circumstances relied upon were apparent at the time the agreement was executed and did not constitute a qualifying material change, the refusal to vary the agreement was upheld.

The respondent mother’s cross‑appeal seeking trial costs was also dismissed, as the costs determination fell within the trial judge’s discretion.

The applicant brought a motion to change seeking an increase in child support under an existing divorce order.

The respondent opposed the increase and brought a cross‑motion seeking termination of a nominal $1 per year spousal support order.

The court found the respondent’s guideline income to be approximately $191,500 after adjusting professional expense deductions and concluded the guideline table amount was less than the $2,600 monthly support already being paid.

The court ordered no change to the existing child support but directed that verified section 7 expenses be shared proportionately based on the parties’ respective incomes.

The respondent’s request to terminate the nominal spousal support order was also refused due to insufficient evidentiary basis.