James Douglas Higginson

This is a costs decision following a contempt motion brought by the applicant to enforce paternal grandparent visits.

The court found that the applicant had proven contempt beyond a reasonable doubt but exercised judicial discretion not to make a formal finding of contempt, citing the applicant's failure to pursue other enforcement steps and the potential negative impact on the children.

The respondent was found in breach of the order, and child-centred relief was granted.

The applicant sought full recovery costs, while the respondent argued for costs in her favour on a partial indemnity basis, claiming success in defending the contempt.

The court determined that the applicant was largely successful in reestablishing visits and proving contempt, and neither party acted unreasonably to be deprived of costs.

The applicant was awarded partial indemnity costs of $18,459.84, reduced slightly due to the respondent's minor success in obtaining updated information about the applicant's therapy.

The applicant brought a contempt motion against the respondent for allegedly breaching a consent order concerning paternal grandparent visits with the children.

The court found that the respondent was in breach of the order, having failed to actively promote and facilitate the visits.

However, the court exercised its discretion not to make a formal finding of contempt, emphasizing that contempt is a remedy of last resort in family law, other remedies were available, and a contempt finding would not serve the children's best interests by escalating conflict.

Instead, the court issued new orders to facilitate grandparent visits, mandated mediation, and required the applicant to provide proof of completed therapy.

The applicant father sought to vary a child support agreement, arguing that the non-variation clause in their Amended Separation Agreement should be set aside due to "unconscionable circumstances" arising from the unforeseen economic impact of the COVID-19 pandemic on his income.

The respondent mother opposed, arguing the non-variation clause should stand.

The court found that while the pandemic created challenging circumstances for the father, the overall history of the child support payments, including 17 years where the father potentially underpaid, did not meet the high threshold of "unconscionable circumstances" required to set aside the non-variation clause under s. 33(4)(a) of the Family Law Act.

The court dismissed the father's motion to vary the underlying child support amount but allowed him to bring a motion for a stay of enforcement or suspension of the full amount of child support for a period.

The Respondent father brought a motion to change a previous order, seeking joint decision-making with final say on health matters and equal parenting time for the parties' child.

The Applicant mother sought to maintain primary residence and final decision-making power.

The court found a material change in circumstances and, after considering the child's best interests, ordered equal parenting time on a 2-2-3 schedule.

Decision-making authority was split, with the father having final say on health matters and the mother on education matters, in recognition of their communication issues and respective capabilities.

The court also mandated the use of a communication app and ordered compliance with previous orders regarding documentation.

Motion to determine priority to funds paid into court in a bankruptcy proceeding.

The trustee in bankruptcy sought determination of whether the respondent had a valid lien or secured interest in a trailer component installed before the bankruptcy and also sought reimbursement of prior interpleader costs.

The court rejected the respondent’s claim to a lien under the Repair and Storage Liens Act but found that the respondent had repossessed the trailer prior to the bankruptcy and therefore held a perfected security interest in the installed component under the Personal Property Security Act.

As a result, the respondent held a secured claim limited to the value of the component, with the remainder of its claim treated as unsecured.

The trustee’s request for reimbursement of costs relating to earlier proceedings was denied.

The applicant sought a divorce and damages in tort arising from an assault committed by the respondent spouse following separation.

The court accepted evidence that the respondent forcibly entered the applicant’s home at night and assaulted her, including choking her, striking her head against a wall, and making threats, resulting in physical injuries and ongoing psychological harm.

The court reviewed Canadian jurisprudence on tort claims arising from domestic violence, including assault, battery, and intentional infliction of mental suffering, and considered the role of aggravated damages in compensating victims for humiliating or oppressive conduct.

While acknowledging the seriousness of the respondent’s conduct and the applicant’s continuing emotional distress, the court found the injuries were not permanent and the incidents relatively isolated compared to higher‑award cases.

The applicant was awarded $15,000 in general and aggravated damages and granted a divorce.

Following a family law hearing, the court addressed the parties’ competing submissions on costs.

The court considered the applicable Rules governing costs and the parties’ settlement positions.

The respondent argued that he had achieved success warranting a costs award; however, the court found that success in the proceeding was divided.

The respondent’s complicated and insufficiently explained income situation made proper evaluation of his offer to settle difficult, and the applicant’s decision not to accept it was not unreasonable.

The court ordered that there be no order as to costs.