James D.S. Whyte

The respondent brought a cross-motion seeking an order or declaration that $24,000 paid to the applicant in the first six months of 2019 constituted spousal support, primarily to secure tax relief for his 2019 tax return.

The court found insufficient evidence to infer the payments were spousal support, noting the lack of agreement, incomplete financial disclosure, and the interim nature of subsequent support orders.

The cross-motion was dismissed without prejudice to the respondent raising the issue at trial.

The motion judge previously awarded costs against the respondent and, on his own initiative, raised the issue of whether the respondent's lawyer should be personally liable for those costs under Family Law Rule 24(9).

The matter was adjourned to a different judge.

The court found that while the lawyer's conduct met the threshold of running up costs without reasonable cause due to incompetence, there was no bad faith or unethical conduct.

Exercising extreme caution, the court declined to order costs against the lawyer personally.