Judith M. Nicoll

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 appellant appealed a summary judgment order dismissing her application to set aside an arbitral award regarding spousal support.

The arbitrator had previously found the appellant entered into a relationship resembling marriage, terminating her support entitlement.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that the application was an abuse of process attempting to relitigate issues already decided, raised no genuine issue for trial, and was commenced outside the 30-day time limit under the Arbitration Act, 1991.

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.

A payor spouse brought a motion to vary a spousal support order following a review clause in a prior consent order.

The responding spouse sought increased spousal support and payment of alleged child support arrears, arguing that additional support was required while completing medical specialty training.

The court found the prior order contemplated four years of support to allow the responding spouse to complete training and held that the opportunity had not been pursued during that period.

While recognizing the difficulty of balancing childcare with residency demands, the court concluded it would undermine the original agreement to restart the full support period.

The court ordered limited further support equivalent to two academic years, contingent on enrollment in a specialty program, and dismissed the claim for child support arrears as contrary to an arbitration clause in the prior order.

The appellant appealed a trial judgment regarding the equalization of net family property and spousal support.

The Court of Appeal found the trial judge erred by failing to allow a deduction for reasonably foreseeable future legal costs related to ongoing litigation at the date of separation, allowing a $300,000 deduction.

The Court also corrected calculation errors in retroactive spousal support and adjusted ongoing spousal support to $1,400 per month.

The appeal was allowed in part, with the equalization payment and spousal support amounts reduced.

The appellant husband appealed the dismissal of his motion to vary spousal and child support obligations contained in minutes of settlement.

He argued that the respondent wife's remarriage to a wealthy man constituted a material change in circumstances.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the appellant knew of the serious relationship heading toward marriage when he signed the minutes of settlement, meaning the remarriage was foreseen and could not constitute a material change.

The court also upheld the child support and costs orders.

The appellant wife appealed a decision dismissing her motion for judgment to enforce minutes of settlement.

The motions judge had found that the parties entered into a binding written settlement but directed a trial to determine whether there was a subsequent oral agreement to vary the terms.

The Divisional Court allowed the appeal, holding that the motions judge erred in failing to enforce the binding written contract, especially since the husband had not brought a cross-motion regarding the alleged oral variation.

A concurring opinion noted that under s. 55(1) of the Family Law Act, any agreement to amend a domestic contract must be in writing, rendering the alleged oral variation unenforceable.

The appellant husband appealed a motions judge's order increasing spousal support payable to the respondent wife.

The motions judge found a material change in circumstances under s. 17(4) of the Divorce Act due to a significant, unforeseen increase in the appellant's disposable income following an arbitration award.

The Court of Appeal applied the deferential standard of review from Hickey v. Hickey and found no error in the motions judge's application of the Willick test or calculation of support.

The appeal was dismissed with costs.