Mark P. Shelston

Following a prior decision on a family law motion concerning custody and parenting arrangements, the court determined the issue of costs.

The respondent mother was found to be the successful party.

The court rejected the argument that costs should not be awarded in custody and access disputes and applied the Family Law Rules governing costs, including Rule 24(11).

After reviewing the parties’ conduct, the reasonableness of settlement offers, and the complexity and importance of the issues affecting the children, the court reduced the claimed fees to a reasonable level.

The applicant father was ordered to pay fixed costs to the respondent.

The applicant brought a motion to vary a separation agreement and prior order that terminated child support when the parties’ children reached age 21.

The court considered whether the contractual provision was enforceable where the children remained full‑time post‑secondary students.

The court held that the clause terminating support at age 21 was unreasonable and unenforceable under s. 56(1.1) of the Family Law Act because it conflicted with the objectives of the Federal Child Support Guidelines.

The court further concluded that a motion to vary under s. 17 of the Divorce Act does not require that the children be “children of the marriage” at the date of filing.

Retroactive variation was granted and the motion adjourned to determine the appropriate quantum of support for adult children under s. 3(2) of the Guidelines.

Following two family law motions in which the applicant was largely successful, the court determined the appropriate costs award.

The applicant sought substantial indemnity costs of $20,000 while the respondent argued for partial indemnity of approximately $11,540.

The court considered the respondent’s partial success on a custody issue, some overlap in legal work by junior counsel and a law student, and the respondent’s litigation conduct including failure to comply with prior orders and misleading conduct regarding the calculation of matrimonial home sale proceeds.

After applying reductions but emphasizing the applicant’s overall success and the respondent’s conduct, the court fixed costs on an all-inclusive basis.

On a family law motion concerning spousal support, the responding party sought termination of support while the moving party’s income had substantially increased.

The court declined to terminate support on the motion, holding that termination should be determined at trial on a full evidentiary record.

Applying the Spousal Support Advisory Guidelines and considering the parties’ incomes, needs, means, and custodial arrangements for the children, the court adjusted the quantum of spousal support beginning January 2010.

The court ordered stepped amounts reflecting the parties’ financial circumstances and prior reductions, and directed counsel to calculate any resulting overpayment.

The respondent brought a motion to change seeking custody of a teenage child, variation of child support, termination of spousal support, and related relief.

The court granted custody of the child to the father because the child had resided with him for an extended period and custodial authority should reflect the existing residential arrangement.

The court refused to appoint the Office of the Children’s Lawyer regarding the two younger children due to extensive prior assessments and the father’s failure to comply with counselling and parenting program requirements intended to address parental alienation concerns.

Child support was varied using a set-off approach reflecting that one child lived with the father and two with the mother, based on updated income figures.

Summary judgment was also granted to the mother for unpaid proceeds from the sale of the matrimonial home.