Janet Marie Whitehead

This endorsement addresses the issue of costs following the resolution of a dependant's claim brought by the applicant, Michael John Nicholson, against the estate of his deceased ex-wife, Haddie Faye Claire Nicholson.

The claim sought child support for their two children, which was ultimately settled through partial minutes of settlement providing $250/month per child.

The applicant sought full indemnity costs, while the Estate opposed any award.

The court, applying the modern approach to costs in estate litigation as outlined in *Canada Trust Company v. Gooderham et al.* and Rule 57.01(1) of the *Rules of Civil Procedure*, found no presumption of costs from an estate.

Considering the applicant's success in securing child support payments that would not have otherwise flowed, the court awarded the applicant fixed costs of $7,000.00, inclusive of HST and disbursements, limited to the support issue.

The applicant sought retroactive child and spousal support, challenging a 2002 separation agreement that terminated spousal support when the youngest child turned 18.

The court applied the Miglin framework, finding the termination clause failed to meet the objectives of the Divorce Act given the 20-year traditional marriage.

Ongoing spousal support was ordered at $1,000 per month.

Applying the D.B.S. framework for retroactive child support, the court imputed income to the applicant and calculated a net overpayment by the respondent of $10,802.

Retroactive spousal support was fixed at $13,900, resulting in a net payment of $3,102 to the applicant.

The appellant husband appealed a trial judgment regarding the equalization of net family property.

The Court of Appeal allowed the appeal in part, finding that the trial judge erred by including post-separation severance packages in the parties' net family property statements, as these did not exist at the date of separation.

The court dismissed the remaining grounds of appeal, including challenges to the valuation of a guaranteed debt, findings on early retirement, imputed income, and the denial of pre-judgment interest.

The equalization payment was reduced accordingly.