Judith M. Nicoll

This appeal concerns the determination of spousal support in a 14-year marriage between two high-income earners.

The appellant, a financial advisor earning over $2 million annually, challenged the trial judge's order requiring him to pay $20,000 monthly spousal support for 9.5 years to the respondent, a respirologist earning an imputed income of $550,000 annually.

The appellant argued the respondent had no entitlement to spousal support due to her high income and lack of economic disadvantage.

The Court of Appeal upheld the trial judge's decision, finding the respondent had both compensatory and non-compensatory entitlements to spousal support based on her role in supporting the appellant's career advancement during the marriage, despite her own professional income.

This endorsement addresses remaining issues from a trial, including parenting terms, equalization payment, prospective and retroactive section 7 expenses, life insurance to secure support, retroactive spousal support, and post-separation adjustments.

The court ordered a six-month review of parenting terms, set out specific prospective section 7 expenses and their payment ratio (Father 69.4%, Mother 30.6%), and clarified university expense coverage for the first degree.

Retroactive section 7 expenses were denied due to a lack of documentary proof.

The Father was ordered to maintain $2.1 million in life insurance, reducible biennially.

No adjustment was made to retroactive spousal support for 2021-2022, as interim payments were deemed fair, but the Father owes $30,000 for 2023 underpayments.

Claims by the Father for HELOC interest and matrimonial home carrying costs were denied due to lack of proof and prior agreement.

Costs were left for the parties to resolve.

This endorsement addresses the issue of costs following the dismissal of the respondent mother's motion for independent legal representation for the children.

The applicant father, who successfully opposed the motion, sought costs on a substantial indemnity basis ($28,000).

The respondent mother proposed no costs or a significantly lower amount ($6,000).

The court applied established family law costs principles, affirming the presumption that a successful party is entitled to costs, and determined that partial indemnity was the appropriate scale.

The court ultimately awarded the father $15,000 in costs, finding his initial request too high and the mother's too low, aiming for a fair, just, reasonable, and proportionate result.

The applicant father brought an interim motion for partition and sale of the jointly owned matrimonial home.

The respondent mother opposed the motion, seeking to defer the issue to trial where she intends to request a time-limited order for exclusive possession.

The mother also asserted substantial claims for retroactive support and equalization payments, which could be satisfied by the father's interest in the home.

The court dismissed the father's motion, finding the immediate sale premature.

The decision emphasized the attenuated principles for interim partition and sale of a matrimonial home, requiring a holistic review that considers the best interests of the children and potential prejudice to the responding party's legitimate family law claims, such as exclusive possession or equalization.

The court noted the parties' prior promise to the children to allow them to remain in the home, the imminence of trial, and the lack of clear practical advantage to the father in an immediate sale, as proceeds would likely be held in trust.

The applicant sought to force the sale of the jointly-owned home and claim 50% of the equity.

The respondent argued for a resulting trust, asserting the applicant's 50% title was solely for mortgage financing and that she should retain pre-2009 equity.

The court found an oral agreement that the respondent would retain pre-June 2009 equity, and the parties would share equally in equity accrued thereafter.

The court also found the applicant unjustly enriched by undisclosed business income and deceitful conduct, leading to a reduction in his share.

The sale of the home was ordered, with specific terms for distribution reflecting the pre-2009 equity, adjustments for the applicant's unjust enrichment, and his share of carrying costs and consumable expenses since separation.

The respondent mother brought a motion for temporary child and spousal support, disclosure, and contribution to Section 7 expenses.

The court ruled that temporary support should be based on the applicant father's current annual draw income, with additional firm equity distributions to be shared as lump sums when received, rather than on his higher historical average income.

Disclosure was ordered from the father's date of separation (2014) forward.

The applicant father was largely successful on the support and disclosure issues, and costs were awarded in his favour.

The applicant father and respondent mother engaged in a high-conflict custody and access dispute over their five-year-old child.

The mother sought sole custody and decision-making, while the father sought expanded access and parallel parenting.

Following a 44-day trial and a section 30 assessment, the court granted the mother sole custody and primary residence, but significantly expanded the father's parenting time to include phased-in overnight visits.

The court ordered a divided parallel parenting regime for decision-making, granting the mother authority over education and routine medical care, and the father authority over routine dental care and final decision-making for major medical and dental issues.

The applicant moved to change a child and spousal support order following his termination for cause from his position as CEO of Redknee.

He claimed a catastrophic change in circumstances due to his job loss and the forced sale of his shares to meet margin calls.

The court dismissed the motion, finding it premature as the original order required his income to drop below $465,000 for two consecutive years before a review.

The court also found the applicant failed to prove a material change not contemplated by the original order, noting his lack of disclosure, failure to mitigate, and prioritization of his second family's expenses over his support obligations.

This is a costs endorsement arising from a motion for temporary access to a child during November and Christmas 2017.

The applicant father sought access to the child while a trial on custody and access was ongoing before another judge.

The respondent mother opposed the motion.

The court granted the applicant substantially all of the relief sought, permitting access during the requested periods with specified conditions.

The applicant subsequently sought full recovery of costs in the amount of $6,724.06.

The court reduced the costs award to $3,000.00 inclusive of all fees, disbursements, and HST, citing the failure of either party to serve an offer to settle and other relevant factors under the Family Law Rules.

The father brought motions to adjourn the trial and to increase his parenting time with the child, including overnight access.

The mother opposed the increase in parenting time and requested an update to a s. 30 assessment.

The court granted the adjournment of the trial due to counsel's unavailability and the need for the father to respond to an expert income report.

However, the court denied the father's request to change the temporary parenting order, emphasizing the principle against disturbing temporary orders prior to trial without compelling reasons.

The court also denied the mother's request for an updated s. 30 assessment due to the broken relationship between the father and the assessor, and made specific orders for further disclosure.

The applicant brought a motion seeking numerous forms of interim relief including increased child support, spousal support, a forensic income analysis of the respondent, and a preservation order over assets.

The court assessed the respondent’s income based on evidence of current salary and limited additional earnings, rejecting the applicant’s request to impute a substantially higher historical income.

The court found no evidentiary basis for a forensic accounting investigation or for a preservation order under s. 12 of the Family Law Act.

Ongoing child support was recalculated based on an income of $312,000 and spousal support was set at the low end of the Spousal Support Advisory Guidelines.

Remaining issues including retroactive support were left for future determination.

A costs decision following an interim motion and cross-motion concerning child residential schedule, child support, and spousal support.

The respondent mother achieved greater success on the motion, particularly regarding spousal support entitlement despite a marriage contract waiver.

The applicant father sought to deprive the respondent of costs based on alleged bad faith in failing to comply with a prior consent order for mediation.

The court found the respondent's behaviour unreasonable but not in bad faith, and awarded partial costs to the respondent.

Motion and cross-motion in a family law matter involving a separated couple with a young daughter.

The father sought expanded residential time with the child, including overnight visits, and an order preventing the mother from obtaining a replacement birth certificate.

The mother sought to restructure the existing access schedule, obtain a conduct order, production of documents, questioning on financial issues, child support, and spousal support.

The court addressed the enforceability of a mediation order, the child's residential schedule, makeup time provisions, production and questioning orders, child support, and spousal support in the context of a marriage contract waiver.

The court found a triable issue regarding the enforceability of the spousal support waiver and ordered temporary spousal support despite the waiver.

The respondent brought a motion for summary judgment seeking dismissal of the applicant’s family law application challenging a mediation/arbitration award concerning termination and repayment of spousal support.

The applicant attempted to set aside the arbitration award under the Arbitration Act, 1991 and the Family Law Act, alleging jurisdictional error, breach of natural justice, evidentiary issues, and reasonable apprehension of bias.

The court held that the issues had already been determined in prior proceedings, including a denied motion for leave to appeal and an enforcement order of the arbitration award, and were therefore barred by res judicata and issue estoppel.

The court further found the application was out of time under statutory limitation provisions and disclosed no genuine issue requiring a trial.

Summary judgment was granted and the application dismissed as an abuse of process.

Following earlier reasons on two family law motions, the court determined costs.

The respondent in the underlying motions sought partial indemnity costs for motions to enforce a costs arbitral award and for security for costs.

The court found the respondent had been successful on both motions, although the security for costs order was granted in a lesser amount than requested.

The court held the claimed fees were generally reasonable but disallowed certain unexplained disbursements.

Costs were fixed on a partial indemnity basis in favour of the successful moving party.

Following family arbitration concerning spousal support, the respondent sought to enforce an arbitral costs award and to obtain security for costs in related court proceedings.

The applicant had commenced proceedings seeking to set aside the arbitral awards and various related relief.

The court held that the statutory requirements for enforcement of the arbitral costs award under the Family Law Act and Arbitration Act, 1991 were met and incorporated the award into a court order, but stayed enforcement pending the determination of a forthcoming summary judgment motion.

The court also found that security for costs was justified because the applicant resided outside Ontario, but reduced the requested amount and ordered security of $16,000 to be posted through share certificates.

The respondent’s motions were therefore granted with modifications.

The moving party sought an order incorporating and enforcing a family arbitration award under s. 59.8 of the Family Law Act.

The responding party opposed enforcement on the basis that she had commenced an application to set aside the award under s. 46 of the Arbitration Act, 1991, alleging issues including lack of jurisdiction, evidentiary concerns, denial of natural justice, and reasonable apprehension of bias.

The court found that the grounds advanced largely duplicated issues previously raised in an unsuccessful motion for leave to appeal the award.

The court held that permitting the pending set-aside application to block enforcement would undermine the statutory regime governing family arbitration awards.

The order incorporating the arbitral award was therefore granted and the moving party was awarded costs.

The applicant sought leave to appeal an arbitrator’s decision finding that a terminating event under a separation agreement had occurred and ordering repayment of spousal support previously paid.

Under s. 45(1) of the Arbitration Act, 1991, leave to appeal is available only on questions of law.

The applicant alleged errors relating to contract interpretation, admissibility of evidence, and bias, but failed to particularize any specific legal errors or provide evidentiary support.

The court held that the central issue—whether the applicant was living in a relationship resembling marriage—required applying facts to a legal test and therefore constituted a question of mixed fact and law.

Because leave may only be granted for pure questions of law, the motion for leave to appeal was dismissed.

In matrimonial litigation, the respondent spouse brought a motion seeking extensive third‑party production relating to the estate and business affairs of the applicant’s deceased father, asserting that undisclosed gifts or anticipated inheritance were relevant to spousal support.

The court held that the request was based largely on speculation and suspicion and declined to order broad production from the estate, particularly where the inheritance had not yet been distributed and was subject to ongoing litigation.

The court ordered instead that the applicant provide an affidavit from the father’s accountant confirming any income received from the father or his businesses since separation.

On a cross‑motion, the applicant sought security for an anticipated equalization payment under s. 12 of the Family Law Act.

Finding a real risk of dissipation of assets due to inconsistent financial disclosures and substantial cash holdings, the court ordered the respondent to pay $500,000 into court pending trial.

The respondent brought a motion to vary prior support orders seeking termination of spousal support, reduction of child support, and elimination of certain section 7 expenses based on an alleged reduction in income.

The applicant conceded termination of spousal support but sought a later termination date, an increase in child support, and additional section 7 expenses including private school tuition and tutoring.

The court found the evidence insufficient to establish a material change in the respondent’s income and maintained the previously determined income for child support purposes.

The court terminated spousal support effective April 30, 2012, removed the respondent’s obligation to contribute to nanny expenses, and declined to order contributions for private school tuition or tutoring as necessary section 7 expenses.

The court also reduced the life insurance security amount following termination of spousal support.