Jennifer Breithaupt

Former spouses brought competing motions to vary custody, access, and support provisions of a prior divorce order.

The moving party sought joint custody, expanded parenting time, elimination of child support, and rescission of arrears, while the responding party sought restrictions on access and an order declaring the moving party a vexatious litigant.

Applying s. 17 of the Divorce Act and the test from Gordon v. Goertz, the court found no material change in circumstances justifying modification of custody or shared residence.

The court accepted that the child’s diagnosis of autism spectrum disorder constituted a material change warranting adjustments to access arrangements.

The court recalculated child support under the Federal Child Support Guidelines, fixed arrears, ordered significant costs enforceable as child support, suspended enforcement of arrears to avoid loss of the payor’s employment, and declared the moving party subject to a leave requirement for further proceedings under s. 140 of the Courts of Justice Act.

The applicant spouse sought an advance of $250,000 on a future equalization payment in ongoing family property litigation.

The court accepted that the applicant would almost certainly receive a substantial equalization payment exceeding $800,000 but held that the requested amount was not supported by evidence of a reasonable requirement for funds.

Applying the test from Laamanen v. Laamanen and related authorities, the court found the applicant had demonstrated the need for some funds to pursue litigation, including legal and expert expenses.

Exercising its discretion, the court ordered a more modest advance to level the litigation playing field while avoiding undue prejudice to the respondent’s corporate assets.

An interim advance of $50,000 on equalization was granted.