Jerome C. Gardner

The father brought a motion to change a 2013 child support order, arguing a material change in his income due to a significant drop in his landscape design business revenues.

The mother opposed the motion, arguing he was intentionally underemployed and that the motion should be barred due to an unpaid costs award.

The court found a material change in income, declined to impute income due to insufficient evidence, and allowed the motion to proceed despite the unpaid costs.

Child support was varied retroactively based on the father's actual income for 2014 and 2015, and enforcement of arrears was stayed for six months.

Following a family law motion and cross-motion concerning custody and child support issues, the court addressed costs.

The applicant was largely successful, with the respondent’s claims dismissed except for joint custody, which the applicant had already been prepared to accept.

Applying Rule 24 of the Family Law Rules, the court held that a successful party is presumptively entitled to costs and considered the respondent’s unreasonable litigation conduct, including failure to accept reasonable settlement offers and failure to disclose a substantial employment bonus prior to the motion hearing.

Although the court declined to find bad faith, it concluded that the respondent’s conduct warranted significant costs consequences.

Costs were fixed at $7,500 inclusive of fees, disbursements, and HST.