Kim S. Kieller

The respondent wife brought a motion for interim spousal and child support.

The applicant husband, a cardiologist, historically earned around $1 million annually but claimed a reduced income of $596,000 for 2021.

The court imputed the husband's income at $712,526 and the wife's income at $192,400 due to her lack of financial disclosure regarding her corporate interests.

The court found the wife had a strong prima facie entitlement to non-compensatory spousal support and ordered the husband to pay $12,127.50 per month in interim spousal support and $2,880 per month in interim child support for their adult child.

The husband was also ordered to designate the wife as the irrevocable beneficiary of a $500,000 life insurance policy.

The applicant brought a motion for interim exclusive possession of the matrimonial home, where she also operated a home-based business.

She alleged the respondent was violent and disruptive to her practice.

The respondent denied the allegations and claimed a constructive trust interest in the home.

The court dismissed the motion, finding the allegations of post-separation conduct did not rise to the level of violence under section 24(3) of the Family Law Act, and that the applicant's desire to use the home for business could not trump the respondent's right to use it as a residence.

The applicant sought summary judgment for $500,000 from the deceased husband's estate, representing a life insurance policy he was contractually obligated to maintain for her benefit under a separation agreement but failed to obtain.

The respondent estate argued the clause was merely security for spousal support and subject to the Succession Law Reform Act clawback.

The court found the life insurance clause to be a "stand-alone" obligation, not solely security for support, and granted summary judgment for the applicant for the $500,000.

The issue of retroactive cost of living adjustments was reserved for further submissions.

This motion for directions concerned the procedural path for resolving competing claims against the estate of Michael Birnie.

Susan Larmer, as Estate Trustee and a dependant, sought directions on how to proceed with Janice Birnie's claims (spousal support, life insurance, retroactive CPI adjustments, dependant's relief) and her own and Noah Perron's dependant's relief claims.

The court provided a framework, including timelines for Janice's summary judgment motion, combining the civil action and family application, and confirming Susan's ability to continue as Estate Trustee despite her personal claims.

The appellant appealed from orders made over ten years prior determining equalization, child support, and spousal support in a family law proceeding.

The appellant had failed to appear at trial in 2007 and at a subsequent motion to set aside the trial order in 2008.

The Court of Appeal admitted fresh evidence demonstrating the appellant's serious mental health issues, including PTSD and major depressive disorder, which rendered her incapable of attending the proceedings.

The court found that the appellant's absence was excused and that procedural fairness required setting aside the trial and motion orders.

The court ordered a new trial to determine the issues of equalization and support, set aside a garnishment order, and required the respondent to return garnished funds with interest.

The respondent moved to delist an appeal pending the outcome of outstanding matters in the Superior Court.

The Court of Appeal considered whether it should exercise its discretion to delist the appeal or allow it to proceed as scheduled.

The court determined that the appeal court was the appropriate forum to address the fundamental issue on appeal regarding whether an order made in the absence of the appellant should stand.

The motion was dismissed and the appeal was permitted to proceed as scheduled.

Costs were awarded to the responding party on a partial indemnity basis.

The Applicant successfully moved for a stay of child support due to a change in the children's primary residence.

The court then addressed costs, where the Applicant sought full recovery costs alleging bad faith by the Respondent and costs against Respondent's counsel.

The court found the Respondent's conduct unreasonable but not in bad faith, distinguishing between the two.

It also declined to award costs against counsel, emphasizing the high threshold for such orders.

Ultimately, the court awarded the Applicant $17,000 in partial recovery costs, considering the Respondent's unreasonable conduct and an informal offer made by the Applicant.

The applicant sought to stay child support payments after the children (aged 14 and 15) moved to live primarily with him, departing from a shared custody arrangement.

The children also began attending a private school (St. Andrews College) paid for by the applicant.

The respondent opposed, arguing the applicant lacked "clean hands" and that ending support would cause her hardship.

The court treated the motion as an interim variation of child support, applying the five factors from Clark v. Vanderhoeven.

The court found a material change in circumstances, no clear evidence of the applicant's misconduct, and that continuing child support would cause hardship to the applicant and an incongruous result, potentially jeopardizing the children's attendance at St. Andrews College.

The court also found the matter urgent due to school registration deadlines.

Following separation and a review clause in a separation agreement, the parties disputed the continuation and quantum of spousal support, child support obligations under a shared parenting arrangement, life insurance security for support, and whether post-separation income should be shared.

The court assessed the parties’ respective incomes, imputing income to the respondent due to underemployment.

Applying the Spousal Support Advisory Guidelines and the objectives of s. 15.2 of the Divorce Act, the court determined that the respondent remained in need of support but that a time-limited, step‑down order was appropriate.

Child support was recalculated using the set‑off method under the Federal Child Support Guidelines.

The court also ordered life insurance to secure support obligations and declined to require the respondent to share her post‑separation income.

Following a family law trial addressing net family property issues, the court determined the appropriate costs award.

The court noted that the trial reasons largely supported the mother’s position regarding the elements of net family property and raised credibility and disclosure concerns about the husband’s evidence.

Although the applicant’s bill of costs was not unreasonable, the court found that responsibility for the need for trial was not entirely one-sided.

Balancing these considerations, the court exercised its discretion to fix costs in favour of the applicant.

Costs were fixed at $60,000 all-inclusive.

Following a successful motion to change regarding post-secondary expenses for a child of the relationship, the court considered a costs request by the responding parent.

The responding parent argued entitlement to substantial indemnity costs based on an Offer to Settle that was allegedly close to the final order.

The court found the offer did not qualify as a valid offer under Rule 18 of the Family Law Rules because it contained additional stipulations and releases not reflected in the judgment.

Considering Rule 24(11), the financial circumstances of the custodial parent, and the best interests of the child, the court declined to award costs.

Each party was ordered to bear their own costs.