Mark Thomas Rush

The applicant father sought to vary a child support agreement, arguing that the non-variation clause in their Amended Separation Agreement should be set aside due to "unconscionable circumstances" arising from the unforeseen economic impact of the COVID-19 pandemic on his income.

The respondent mother opposed, arguing the non-variation clause should stand.

The court found that while the pandemic created challenging circumstances for the father, the overall history of the child support payments, including 17 years where the father potentially underpaid, did not meet the high threshold of "unconscionable circumstances" required to set aside the non-variation clause under s. 33(4)(a) of the Family Law Act.

The court dismissed the father's motion to vary the underlying child support amount but allowed him to bring a motion for a stay of enforcement or suspension of the full amount of child support for a period.

This trial decision addresses outstanding issues from a divorce application, including property equalization, child support, spousal support, and Section 7 expenses.

The court determined the parties' net family properties, ordered an equalization payment from the respondent to the applicant, and calculated retroactive and ongoing child support.

The court imputed income to the self-employed applicant due to undeclared cash earnings and unreasonable business expense deductions.

The respondent was found entitled to non-compensatory spousal support, with retroactive and ongoing payments ordered from the applicant.

Claims for Section 7 extraordinary expenses for children's athletic activities were denied.

The applicant sought to vary a separation agreement dated February 15, 2000 to obtain full and frank financial disclosure from the respondent, to impute income to the respondent, and to determine child support for three children based on his actual income.

The respondent sought to dismiss the claim but alternatively sought credit for overpayments, contribution to section 7 expenses, and child support from the applicant for their son who moved in with him in December 2010.

The court found a change in circumstances warranting variation, determined the respondent's income by imputing corporate income and adding back unreasonable business expenses, made a retroactive award of child support to 2008, and ordered ongoing support for two children including an adult child attending post-secondary education beyond the age of 23 specified in the agreement.

The defendant brought a motion seeking consolidation of a tort action for damages arising from alleged spousal assaults with an ongoing family law application between the same parties.

The plaintiff opposed consolidation, arguing the tort claim was separate and commenced later due to psychological readiness.

The court considered Rule 6.01 of the Rules of Civil Procedure and the principle in s. 138 of the Courts of Justice Act that multiplicity of proceedings should be avoided.

Finding that both proceedings involved identical parties, overlapping factual allegations of assault during the marriage, and common issues of fact, the court held that all claims arising from the marital relationship should be determined together.

The tort action was ordered consolidated with the family law application to avoid duplicative proceedings and inconsistent findings.