Matti E. Mottonen

This decision addresses costs for two prior motions in a family law matter.

The court found that success was divided on both the initial motions concerning income, child, and spousal support, and a subsequent motion to correct mathematical errors.

Neither party's offer to settle met the criteria for special costs under the Family Law Rules.

The court also considered the parties' conduct, noting that both contributed to the complexity of the litigation.

Ultimately, the court ordered that each party bear their own costs for the motions.

The applicant brought a motion under Rule 25(19)(b) of the Family Law Rules to correct alleged mathematical errors in the court's previous decision regarding child and spousal support.

The court found that while it did not intend to gross-up the pre-tax income as the applicant suggested, it did make an inputting error in the DivorceMate software.

The court exercised its discretion to correct the error, resulting in adjusted monthly child support of $1,719 and spousal support of $2,478.

The parties brought cross-motions to determine interim child and spousal support, requiring the court to determine their respective incomes.

The respondent's income was set at $154,350 based on a three-year average of pre-tax corporate income available to him, rather than his most recent tax return.

The applicant's income was set at $40,468, which included her employment income and imputed rental income, but the court declined to impute further income for underemployment.

The court ordered interim child support of $1,692 per month and spousal support of $2,170 per month, effective November 2021.

The applicant father sought to vary a 2016 joint custody and shared parenting order.

The respondent mother alleged assault by the father against their child, which the court found lacked credibility.

Relying on a 2015 Parenting Capacity Assessment, the court determined the mother was the primary contributor to parental conflict.

The court ordered a parallel parenting regime with specific decision-making allocations, alternating weekly residence for the child, and structured holidays.

Communication between parents was limited to Our Family Wizard.

The father was awarded costs.

The Applicant sought to change an order regarding the sale of the matrimonial home to allow his girlfriend, a real estate agent, to co-list the property, citing concerns about the asking price.

The Respondent sought sole authority to instruct the real estate agent.

The Applicant also moved to sell artwork via auction and household contents via garage sale to declutter and generate funds.

The court granted the Respondent sole authority for the matrimonial home sale, finding the Applicant uncooperative and his valuation concerns unsubstantiated.

The court dismissed the Applicant's motion to sell artwork and contents, ruling it lacked authority under s. 9 of the Family Law Act without an existing equalization order.

No costs were awarded, as both parties were found to have behaved unreasonably.

The applicant husband and respondent wife brought a motion and cross-motion following a 27-year relationship.

The husband sought exclusive possession of the matrimonial home and spousal support, while the wife sought the sale of the home and occupation rent.

The court ordered the immediate sale of the matrimonial home pursuant to the Partition Act, dismissing the husband's claim for exclusive possession.

The court awarded the husband interim spousal support of $2,315 per month, noting his lower income as an artist compared to the wife's income as a pharmacist, and ordered the wife to secure the support with a life insurance policy.

The wife's claim for occupation rent was dismissed because she had not paid spousal support since separation and the husband had housed their dependent children.

The respondent husband brought a motion to dismiss the applicant wife's family law application, arguing that a prior consent order dividing his pension constituted a full and final settlement of all claims.

The court found that there was no agreement for the wife to release her other claims, such as spousal support and equalization, and that enforcing such an alleged agreement would be unconscionable given the wife's limited means and the traditional nature of the marriage.

The court dismissed the husband's motion to dismiss, allowed the wife to continue with her claims, and granted the husband's request for a divorce order.

The parties brought cross-motions to change interim custody and access orders regarding their four-year-old child.

The respondent mother sought to relocate with the child to North Bay or New Liskeard for employment and enroll him in junior kindergarten, while the applicant father sought to have the child reside primarily with him in Sudbury.

Applying the Gordon v. Goertz framework, the court found that the mother's employment opportunities and the child's need to start school constituted a material change in circumstances.

The court held it was in the child's best interests to remain in the primary care of the mother and relocate to North Bay, where she had family support and employment.

The father was granted significant access and a reduction in child support to offset travel costs.

The mother was entirely successful on a motion for sole custody of the children and sought full indemnity costs of $7,973.28.

The father, who became self-represented after the motion, failed to appear at the costs hearing.

The court found the father's position on the motion was unreasonable and unsupported by evidence, and his conduct was uncivil and abusive.

Although his conduct did not meet the strict threshold for bad faith or full indemnity costs, it justified an award on a substantial indemnity scale.

The court ordered the father to pay costs of $6,500 plus HST.

This decision addresses cross-motions for interim custody, access, and child support.

The Mother sought sole custody, while the Father sought joint or shared custody with primary residence with him.

The court found the Mother was the primary caregiver before separation and was better able to provide consistent care due to her proximity to the children's school and stable work schedule.

The Father's unilateral decisions, lack of transparency regarding his new living arrangements, and disrespectful communication with the Mother raised serious concerns about his ability to prioritize the children's best interests.

The court rejected the Father's "status quo" argument, finding the current arrangement was unilaterally imposed.

Sole custody was granted to the Mother, with defined access for the Father and child support orders.

The applicant brought a motion to enforce a settlement agreement reached by counsel regarding the division of matrimonial property and other issues.

The respondent opposed the motion, arguing that the minutes of settlement did not accurately reflect her understanding of the agreement and that she was not ad idem on the essential terms.

The court found that experienced counsel had negotiated a comprehensive resolution, confirmed verbally and in writing, and that the respondent's counsel had ostensible authority to bind her.

The motion was granted, and judgment was ordered to issue pursuant to the minutes of settlement.

The father brought a motion to change a 2013 child support order, arguing a material change in his income due to a significant drop in his landscape design business revenues.

The mother opposed the motion, arguing he was intentionally underemployed and that the motion should be barred due to an unpaid costs award.

The court found a material change in income, declined to impute income due to insufficient evidence, and allowed the motion to proceed despite the unpaid costs.

Child support was varied retroactively based on the father's actual income for 2014 and 2015, and enforcement of arrears was stayed for six months.

The applicant brought a motion to increase temporary spousal support after the respondent's obligation to pay child support was terminated.

The respondent argued that the applicant's new relationship and cohabitation eliminated her need for support.

The court rejected this argument, finding a prima facie case for continued spousal support based on the lengthy traditional marriage and the applicant's ongoing need.

The court ordered the respondent to pay increased temporary spousal support of $1,503 per month.

The parties brought competing motions for temporary custody, child support, and exclusive possession of the matrimonial home.

The applicant father sought a 'Bird's Nest' order where the parents would rotate in and out of the home, while the respondent mother sought sole custody and exclusive possession.

The court dismissed the request for a 'Bird's Nest' order, finding it unnecessary and disruptive to the mother's home-based employment.

The court ordered joint custody with primary residence to the mother, granted her exclusive possession of the home, and ordered the father to pay child support based on an imputed income of $71,000.

The mother's request for a restraining order was dismissed due to lack of objective evidence.

The responding spouse moved for a final order enforcing a settlement allegedly reached through correspondence between counsel resolving multiple family law issues including spousal support, property division, and possession of the matrimonial home.

The applicant spouse argued that the draft Minutes of Settlement should also include a term requiring the respondent to designate her as an irrevocable beneficiary under his group life insurance policy.

The court held that the correspondence exchanged between counsel constituted a complete and binding settlement agreement as of March 25, 2013, and that the life insurance term had never been negotiated or agreed upon.

The court rejected the attempt to insert additional terms into the settlement and held that it lacked authority under s. 34 of the Family Law Act to add such a provision to the final order.

The settlement was therefore enforced as reflected in the correspondence, excluding the life insurance requirement.

In a family law motion relating to property equalization, the moving party sought an order requiring the responding party to obtain a formal valuation of her shares in a limited partnership as of the valuation date.

The responding party asserted the shares had nominal value and relied on an email from a company officer and financial statements showing operational losses.

The court held that the party asserting the value of an asset bears the primary onus of establishing that value with credible evidence.

The evidence provided was insufficient to meet that burden, as there was no evidence of the qualifications of the person offering the opinion or the basis of the valuation.

The court ordered the responding party to obtain an independent formal valuation at her own expense.

The parties, unmarried parents of a four-year-old son with a complex feeding disorder, disputed custody, access, child support, and spousal support.

The mother sought sole custody and supervised access, arguing the father could not properly care for the child's special needs.

The court ordered joint custody with unsupervised access, finding both parents capable and loving, though granting the mother final decision-making on health matters.

The father, a professional online gambler with highly fluctuating income, was imputed a minimum income of $60,000 for child support purposes, with additional support payable on income up to $150,000.

The mother's claim for spousal support was dismissed as the court found the parties never cohabited in a relationship of some permanence and were therefore not spouses under the Family Law Act.

The parties brought cross-motions regarding the sale of the matrimonial home, occupation rent, and child care expenses.

The applicant sought to purchase the respondent's interest in the home, which the court denied, ordering the property to be listed for sale on the open market.

The respondent sought occupation rent because the applicant thwarted a previous order to list the home.

The court found the respondent had a tenable claim for occupation rent due to the applicant's conduct, but calculated the quantum to be zero because the respondent's share of the carrying costs exceeded his share of the potential rent.

The court also ordered the respondent to pay his proportionate share of day care expenses going forward, but denied the applicant's claim for retroactive day care costs.

The parties separated after a 14-year marriage with four children.

The mother sought sole custody and permission to relocate the children to Mississauga, while the father sought shared parenting.

The court granted sole custody to the mother but prohibited the relocation of the twins, emphasizing the maximum contact principle and the children's established ties in Sudbury.

The court imputed additional income to the father for child and spousal support purposes.

The mother's claim for a constructive trust over the father's pension, which survived his bankruptcy, was denied because the bankruptcy statute provided a juristic reason for the enrichment.

However, the court ordered the father to pay periodic spousal support upon his retirement to account for the pension's value.