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 seeking disclosure orders and interim payment for legal costs and an income valuation report.

The court found the applicant's claim of urgency unfounded, noting that delays were partly attributable to the respondent's complex financial holdings and the need to obtain records from third parties.

While acknowledging some outstanding disclosure, the court observed the respondent's cooperation.

The court ordered specific disclosure, including a corporate structure chart, and an interim payment of $35,000 to the applicant for accounting/valuation costs, applying the criteria from Stuart v. Stuart.

All other relief sought by the applicant was dismissed.

Costs were ordered to be borne by each party due to mixed success and the precipitous nature of the motion.

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 parties brought cross-motions regarding the enforcement of a 2017 consent order requiring the sale of three assets: a jointly owned cottage, and the respondent's business and commercial property.

The applicant sought the appointment of a Receiver/Manager to sell all three assets due to the respondent's alleged failure to sell them.

The court declined to appoint a receiver for the cottage, ordering the applicant to list it immediately.

However, the court appointed a Receiver/Manager for the business and commercial property, finding special circumstances existed because the applicant had no other means to force the sale and the respondent lacked incentive to sell.

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.

The applicant wife proceeded to an uncontested trial after the respondent husband's pleadings were struck for persistent financial non-disclosure.

The court granted joint custody of the two youngest children, with primary residence to the mother, and modified the youngest child's access schedule.

The court imputed the husband's income at $215,768 due to intentional underemployment and diversion of income.

The husband was ordered to pay retroactive child and spousal support, ongoing support, and an equalization payment of over $2.4 million based on the best evidence of the sale of his business interests.

To enforce the judgment, the court ordered the husband's property transferred to the wife and awarded full recovery costs.

Following a family law trial, the court addressed the issue of costs.

The unsuccessful party advanced an unreasonable theory at trial, requiring the opposing party to expend significant effort to establish entitlement to support and property division.

Although the successful party did not obtain the full quantum sought, the court found the litigation efforts necessary, including expert evidence relating to income.

Applying proportionality and the general principle that the successful party is presumptively entitled to costs, the court fixed costs in favour of the successful party.

The applicant father moved for a temporary order for shared week-about parenting of the parties' 11-year-old child.

The respondent mother cross-moved for primary residence, child and spousal support, and an advance for interim disbursements under Rule 24(12).

The court granted the father's request for shared parenting, finding it in the child's best interests to maximize contact with both parents.

For interim support purposes, the court imputed the father's use of a company vehicle and medical benefits to his income, but declined to include retained corporate earnings without a business valuation.

The court also ordered the father to pay $25,000 to the mother as an advance for interim disbursements to level the playing field.

The parties separated after a lengthy marriage.

The husband worked in an unregistered firewood business with his father and lived rent-free in a home titled to his parents.

The court found the husband's income was $100,000, accounting for unreported cash and personal benefits.

The court also found the husband had a 50% partnership interest in the business and a $100,000 beneficial interest in the home via constructive trust, both of which were included in his net family property.

The wife was awarded an equalization payment of $285,862.24, ongoing spousal support, and child support for their daughter's post-secondary education.

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.

The parties separated after a 30-year marriage during which they operated a horse training business and farm.

The court determined the equalization of net family property, finding that the respondent could not saddle the applicant with business debts that were part of a joint enterprise with their son.

The applicant was ordered to pay an equalization payment of $31,455.03.

The court also imputed income to the respondent and ordered him to pay a lump sum spousal support of $80,000 to the applicant, resulting in a net payment to the applicant of $48,544.97.

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.

The applicant mother brought a motion to change a prior child support order seeking retroactive child support and contribution toward the parties’ adult child’s post-secondary education expenses.

The court declined to order retroactive child support, finding the payor parent had complied with the existing order and the delay in seeking variation was not adequately explained, applying the principles in DBS v. SRG.

However, the court held the father should contribute to post-secondary education expenses despite the absence of a relationship with the child, noting a parent cannot rely on a lack of relationship they did not attempt to foster.

Child support was ordered during summer months when the child would reside at home, and the father was ordered to contribute 75% of the net post-secondary expenses for a two‑year college program.

A monthly payment schedule was set to satisfy the father’s total obligation after credit for ongoing payments.