James D. Higginson

The parties executed minutes of settlement following a pretrial conference, which required the exchange of a mutual release.

The moving party sought a general release barring all claims, including a private criminal information, while the responding parties sought a release limited to the civil action.

The court found there was no meeting of the minds regarding the scope of the release, as the responding party secretly intended to pursue criminal charges.

The motion to approve either draft release was dismissed, and the action was ordered restored to the trial list if no agreement could be reached.

Following a family law trial concerning spousal support, child support, and imputed income, the court determined the costs to be awarded.

The applicant was largely successful on the issue of imputing income to the respondent, which required the retention of business valuators.

Success was divided on child support and section 7 expenses.

The court awarded the applicant partial indemnity costs, fixing fees at $50,000 plus HST and disbursements at $46,519.80, noting that both parties had exhibited unreasonable behaviour at times and adjusting the applicant's counsel's hourly rate to reflect the reasonable expectations of the respondent.

The moving party father brought a motion to change seeking to terminate child support for his two adult sons and to vary or terminate spousal support.

The court found that both sons were no longer dependents as they had completed their post-secondary education, resulting in an overpayment of child support by the father.

The court ordered the father to contribute to the sons' section 7 university expenses, setting off the child support overpayment against this amount.

The court also found a material change in circumstances, imputed income to the responding party mother, varied the spousal support amount, and imposed a sunset clause terminating spousal support at the end of 2016.

The plaintiff brought a motion under Rule 37.14 to set aside a registrar's order dismissing the action for delay.

This was the third time the action had been dismissed.

The court applied the Reid factors and found that the plaintiff moved promptly, the delay was due to counsel's inadvertence, a reasonable explanation for the litigation delay was provided, and the presumption of prejudice was rebutted.

The motion was granted and the dismissal order was set aside.