Jodi A. S. Armstrong

Following a motion to vary support arising from a change in a child’s residence, the court determined the issue of costs.

The moving party had served a formal offer to settle under the Family Law Rules that was more favourable to the responding party than the result obtained at the motion.

Applying Rules 18(14) and 24 of the Family Law Rules, the court held that the moving party was the successful party and was presumptively entitled to costs, including full indemnity costs from the date of the formal offer.

The court rejected arguments that the offer was ambiguous and found no unreasonable conduct by either party that would justify departing from the usual costs consequences.

Total costs of $10,500 inclusive of disbursements and HST were awarded, payable partly by set‑off against funds owing under the parties’ separation agreement.

The applicant brought a motion to vary child and spousal support provisions contained in a separation agreement following a material change in circumstances when one child moved from the respondent’s residence to the applicant’s residence, creating a split custody arrangement.

The court considered the appropriate retroactive date for varying support, the method for calculating income where the payor’s earnings fluctuated, and whether support should continue to be calculated based on the prior year’s income as contemplated by the separation agreement.

The court held that the agreement did not mandate automatic recalculation based on the previous year’s income and that the material change justified a new approach to determining support.

For interim purposes, the court used actual income for past years and averaged income over three years for ongoing support, while applying the Spousal Support Advisory Guidelines.

Temporary child and spousal support amounts were ordered retroactive to May 1, 2012 and adjusted for 2013 and ongoing periods.