Karen Ballantyne

This decision resolves financial and parenting issues between former partners Susannah Spencer Hutton and Kenneth Wakely, focusing on primary parenting, occupation rent, child support, fines, and costs.

The court awards primary parenting of the parties’ son to the applicant, orders occupation rent and lump sum child support to be paid from the sale of the jointly owned home, and imposes fines and costs on the respondent for non-compliance with court orders.

The Applicant mother initiated a motion to change a consent Final Order regarding decision-making responsibility, parenting time, and child support for their child, M. The court found a material change in circumstances due to the Respondent father's non-compliance with communication orders, abusive communication, and frustration of the Parenting Coordinator process.

The court granted the Mother sole decision-making responsibility (with a positive onus to consult), adjusted the parenting schedule to reduce the Father's weeknight overnights while extending one weekend per month, and ordered the Father to pay monthly child support and a proportionate share of s. 7 expenses with an annual cap.

The court declined to find parental alienation.

The applicant mother sought a temporary variation of a final parenting order concerning a 10-year-old child, M., aiming to reduce the father's parenting time and gain sole decision-making authority, based on a parenting coordinator's report.

The respondent father opposed the temporary changes and brought a cross-motion for an updated s.30 parenting assessment.

The court dismissed the mother's temporary motion, finding she did not meet the stringent onus required to demonstrate immediate irreparable harm to the child, noting the conflicted record.

The court also dismissed the father's cross-motion for an updated assessment, deeming it unnecessary and a cause of undue delay.

The mother's main Motion to Change was expedited for a two-day trial.

This trial addressed outstanding issues of child and spousal support following the resolution of parenting and property disputes.

The court determined the applicant's income for support purposes, rejecting his proposed lower figure and "top-up" mechanism, and imputed income to the respondent.

The court ordered ongoing child and spousal support payments based on the determined incomes, with spousal support set between the mid and high range of the Spousal Support Advisory Guidelines.

The decision also calculated and ordered a significant retroactive support payment, and mandated future reviews of support.

Following a motion to change spousal support where success was divided, the applicant sought costs on the basis of beating her December 2021 offer to settle.

The respondent argued for a no-costs order.

The court found the applicant was entitled to costs under Rule 18(14) but reduced the amount claimed for the period after the offer by 50% to reflect proportionality and the respondent's genuine settlement efforts.

The applicant was awarded total costs of $137,151.

The moving party (former husband) brought a motion to change seeking to step down and terminate spousal support, arguing material changes in circumstances including increased parenting time, his significantly increased income, and the responding party's full-time employment.

The court found that material changes had occurred but held that the responding party's strong compensatory claim had not yet been satisfied due to her ongoing disproportionate share of parenting responsibilities and career sacrifices.

The court varied the prior consent order by continuing spousal support at the current indexed amount of $3,500 per month until the older children graduate high school, after which it will step down to $1,500 per month until the youngest child graduates.

This is a costs endorsement following motions for temporary parenting and support orders.

The respondent (mother) sought $7,000 in costs, while the applicant (father) requested no costs or $50/month.

The court applied principles of success, reasonableness, proportionality, and party conduct.

The mother was largely successful on several issues, including decision-making responsibility, child support for her daughter, a non-communication order, and obtaining government documentation for the child.

While there was divided success on parenting time, the mother was more successful overall.

Both parties failed to make settlement offers, and the court found the father's positions on several issues unreasonable and unrealistic, which unnecessarily increased the mother's costs.

Despite the father's limited means, the court ordered him to pay $4,800 in costs, payable at $150 per month.

The father (applicant) sought temporary unsupervised and eventually equal parenting time with his two-year-old son.

The mother (respondent) sought sole decision-making responsibility for the son, supervised parenting time for the father, and child support for both the son and her five-year-old daughter (K.), alleging the father had formed a settled intention to act as a parent to K. The mother also made serious allegations of child pornography viewing and family violence against the father, seeking a no-contact order.

The court found the mother's allegations of child pornography viewing and family violence credible for the purpose of the temporary motion, noting a significant power imbalance.

The court granted the mother sole decision-making responsibility for both children, ordered supervised parenting time for the father with the son by paternal family members (excluding the paternal grandmother), imposed a no-direct-contact order between the parents, and ordered the father to pay temporary child support for both children, finding a prima facie case of settled intention for K. The court also ordered the father to deliver government documentation for both children to the mother and restricted the mother from removing the children from Canada without consent or court order.

The respondent father brought a motion to increase his parenting time with the parties' daughter.

The applicant mother opposed the motion, relying on two separate, unfounded allegations of child abuse she had reported to the police and CAS.

A section 30 assessor recommended a gradual increase in the respondent's parenting time and joint custody.

The court found the assessor's report to be probative and held that increasing the respondent's parenting time was in the child's best interests and in furtherance of the maximum contact principle.

The court ordered a gradual increase in the respondent's parenting time but declined to change interim custody at this stage.

The applicant mother sought to vary child support provisions from a 2009 final order, including retroactive table support and section 7 expenses, for two children.

The respondent father sought to terminate support for the eldest child and reduce support for the younger child due to retirement and a second family.

The court found the father's increased income a material change but denied extending support for the eldest child beyond age 22 as per the original order.

Retroactive table support was awarded from 2014 and section 7 expenses from December 2015, balancing the parties' mutual disclosure failures and the father's blameworthy conduct with the hardship a large retroactive award would cause him in retirement.

The court also rejected the father's request to pay below table support, applying the "first-family-first" principle.

The court determined the costs of an appeal, a motion to set an appeal date, and a motion for fresh evidence in a family law dispute.

The appellant was awarded costs for the scheduling motion and the appeal, discounted for divided success, as he succeeded in setting aside the parenting award but not the financial issues.

The respondent was awarded costs for her substantially successful motion to admit fresh evidence.

The costs were netted against each other, resulting in the respondent owing the appellant $16,691.57.

The respondent/appellant (Mr. Petersoo) appealed an arbitration award concerning custody, mobility, and imputed income, and a costs award.

He argued procedural unfairness regarding late notice of mobility issues, misapprehension of evidence, reliance on inadmissible evidence, and failure to consider children's views and the maximum contact principle.

The court found fundamental procedural unfairness in the arbitration regarding parenting issues due to lack of proper notice on mobility, setting aside that part of the award.

The court upheld the financial issues award, finding no error of law in the arbitrator's imputation of income due to Mr. Petersoo's disclosure failings.

Leave to appeal the costs award was denied as it involved questions of fact, not law.

The parenting issues were remitted for a new arbitration before a different arbitrator, and interim parenting arrangements were ordered, increasing Mr. Petersoo's parenting time.

The appellant appealed an order striking his pleadings and permitting an uncontested trial.

The appellant had repeatedly failed to comply with multiple court orders requiring financial disclosure, payment of support arrears, and payment of costs over an extended period.

Despite numerous opportunities and extensions granted by various judges, the appellant continued to be non-compliant.

The Court of Appeal dismissed the appeal, finding no error in the lower court's decision to strike the pleadings given the appellant's persistent and egregious pattern of non-compliance with court orders.

The respondent in a family law proceeding brought a motion to set aside a final order that struck his pleadings and directed an uncontested trial.

The respondent argued that his responding materials were not before the judge who made the order due to a clerical error, and that he was substantially in compliance with prior orders.

The court found that even if the materials had been considered, they did not demonstrate compliance with the prior orders regarding support arrears and expert income reports.

The court concluded that the respondent's non-compliance was willful and deliberate, and dismissed the motion to set aside the order.

The applicant mother sought temporary child support for the child Dylan Lewis Kar-Ho in the amount of $758 per month based on an imputed income of $84,466 CAD (converted from $65,000 USD), retroactive to January 1, 2016.

The respondent father, a self-employed individual residing in New York, claimed an income of only $18,000 USD and offered to pay $300 per month.

The court found that the father had failed to provide adequate financial disclosure despite multiple court orders and opportunities to do so.

The court drew an adverse inference and imputed income to the father based on the significant discrepancies between his declared income, his stated expenses, and his bank deposits.

The court granted the applicant's motion and ordered the respondent to pay $758 per month in child support based on the imputed income of $84,466 CAD.

Following settlement of a motion to change child and spousal support at a settlement conference, the court determined the issue of costs.

The moving party had provided financial disclosure supporting a reduction in income months before commencing the motion and had made a compliant offer to settle that closely matched the eventual settlement.

The court held the moving party was the successful party and found the responding party should have accepted the offer earlier after her own expert confirmed the income analysis.

While some of the moving party’s claimed legal fees were found excessive, the court awarded partial recovery including accountant expenses and post-offer costs.

The responding party was ordered to pay costs totaling $18,292.98 plus HST, payable in monthly installments.

In a family law proceeding, the applicant moved to strike the respondent’s pleadings due to repeated breaches of court orders, including failures to comply with financial disclosure obligations and past non-payment of support and costs.

In the alternative, the applicant sought security for costs and security for ongoing child and spousal support from proceeds of the respondent’s property held in trust.

The court held that striking pleadings is an exceptional remedy, particularly where custody and access issues involving a child remain unresolved, and declined to strike the respondent’s pleadings at this stage.

Security for costs was also denied because the court could not conclude the respondent’s claims were a waste of time or nuisance under Rule 24(13) of the Family Law Rules.

However, the court ordered continued retention of the sale proceeds in trust, directed that $25,000 be held as security for support, and granted the respondent 45 days to comply with outstanding disclosure obligations.

Costs decision following a family law motion concerning temporary custody, parenting schedule, and interim child and spousal support.

The moving party sought costs after obtaining disclosure orders, an interim parenting schedule, and interim support.

The court found the responding party acted unreasonably by failing for years to file an answer or financial statement, ignoring disclosure requests, and unilaterally reducing support payments.

The court emphasized the obligation under the Family Law Rules to make timely disclosure and promote the primary objective of resolving cases justly and efficiently.

The moving party was found to be the more reasonable litigant and entitled to costs.

Following multiple attendances in a family law proceeding concerning support and property division after a long marriage, the court addressed costs arising from motions primarily related to financial disclosure.

The applicant spouse had brought motions seeking disclosure, spousal support, and advances on equalization, arguing that the respondent had delayed providing necessary financial information, including business valuations and income analysis relating to corporate interests.

The court found the respondent had failed to provide timely and adequate disclosure, causing unnecessary delay and requiring the applicant to bring motions to compel compliance.

Although the applicant did not obtain the exact relief requested in earlier motions, the court concluded the motions were necessary and that the applicant was more successful overall.

Costs of $20,000 were awarded to the applicant payable forthwith.

The payor father brought a motion to change a 2004 consent order, seeking retroactive variation of child and spousal support based on a claim that his actual income was lower than the $90,000 imputed in the order.

The court found the father was intentionally under-employed and had unreasonably deducted personal travel expenses from his consulting business, maintaining his imputed income at $90,000.

The court allowed retroactive adjustments to child support based on changes in the children's residence and post-secondary attendance, setting the effective notice date at March 2006.

The father's claim for overpayment of spousal support was dismissed, but ongoing spousal support was ordered to be recalculated to reflect the mother's increased actual income since 2008.

The court also provided directions on the use of RESP funds and the children's required contributions to their post-secondary education expenses.