Michael R. Nyhof

Following a trial on a motion to change child and spousal support, both parties sought costs.

The court determined that the responding party (the original applicant) was the successful party, having successfully defended against the moving party's claims to drastically reduce his income for support purposes and terminate spousal support.

Comparing the final result to the various offers to settle, the court found the responding party's offers were reasonable while the moving party's offers were entirely unreasonable.

The court awarded the responding party partial indemnity costs fixed at $213,000, inclusive of disbursements and HST, noting the complexity of the case and the moving party's conduct.

The moving party father brought a motion to change to reduce child and spousal support, claiming a decrease in his farming income.

The responding party mother brought a cross-motion to increase support, citing his increased net worth.

The original 2010 consent order was based on an imputed income of $250,000.

The court found the father's cutting horse operation was a hobby, not a business, and attributed those corporate losses to his income, resulting in an available income of over $428,000.

However, because neither party could prove how the original $250,000 imputed income was calculated, both motions to change based on income fluctuations were dismissed.

Child support was varied to reflect children ceasing to be dependents.

Spousal support was correspondingly increased to offset the loss of child support and converted into a $250,000 lump sum to effect a clean break.

The parties filed written submissions for costs following a motion regarding child access where success was divided.

The applicant sought $5,579 and the respondent sought $7,500.

The court noted that 21 affidavits were filed on the motion, yet neither party made an offer to settle.

Applying the Family Law Rules, the court found that the failure to make an offer to settle constituted unreasonable behaviour.

Consequently, the court declined to award costs to either party, ordering each to bear their own costs.

The applicant sought $25,000 in costs for temporary proceedings, while the respondent argued for no costs.

The court found divided success in the interlocutory motions and unreasonable conduct by both parties, though the respondent received harsher criticism from the Office of the Children's Lawyer.

Considering these factors and relevant rules, the court ordered each party to bear their own costs.

The applicant father brought a motion for interim access to the parties' three children.

The respondent mother sought to restrict access to supervised, daytime-only visits, alleging the father had substance abuse issues and had inappropriately touched one of the children.

The court found insufficient evidence to support the touching allegations or to require supervised access, but concluded that prima facie concerns regarding substance abuse justified a temporary prohibition on overnight access and conditions prohibiting alcohol and drug use prior to and during access.

The applicant sought to implement Office of the Children's Lawyer (OCL) recommendations for equal parenting time, while the respondent moved for interim child support.

The court addressed the applicant's motion, increasing her parenting time and ordering a week-about schedule for summer, while adjourning the respondent's motion.

The decision considered the existing status quo, the respondent's detrimental conduct in denigrating the applicant and her new partner to the children, and the appropriate weight to be given to an OCL report on an interim motion.

Conditions were imposed on both parents regarding substance use during parenting time.

The applicant father brought a motion seeking frequent overnight access to the parties' two-year-old child.

The respondent mother opposed the motion, arguing it was premature and should await the completion of the Office of the Children's Lawyer report.

The court found that both parties were loving parents and that many of the mother's concerns were unwarranted or based on speculation.

The court granted the father interim overnight access every second weekend, finding that overnight visits were in the child's best interests and long overdue, pending the release of the report.

The respondent husband brought a motion for interim spousal support despite a marriage contract containing mutual waivers of support.

The applicant wife opposed the motion, arguing the contract barred support.

The court applied the Miglin framework and found a triable issue regarding the enforceability of the contract, noting the husband lacked independent legal advice and signed it two days before the wedding.

The court imputed an income of $15,000 to the husband and ordered the wife to pay $600 per month in interim spousal support and maintain his health benefits.

Following a second trial in a bifurcated family law proceeding concerning equalization, spousal support, and child support, the court determined costs.

The applicant was largely successful at trial on equalization and spousal support but unsuccessful on certain issues including child support and some property deductions.

The court rejected arguments that offers to settle triggered automatic cost consequences under the Family Law Rules due to deficiencies in the offers.

Applying r. 24 and considering the reasonableness of the parties’ conduct and the issues pursued unsuccessfully, the court awarded partial indemnity costs significantly below the full recovery sought.

The applicant and respondent separated after a 20-year marriage.

Following a prior trial that set aside their separation agreement, this trial determined equalization and spousal support.

The court dismissed both parties' claims for date of marriage deductions due to lack of evidence.

The respondent was ordered to pay an equalization payment of $68,260.

The court also awarded the applicant retroactive spousal support due to the respondent's conduct and her economic hardship, fixing ongoing interim arrears payments at $750 per month.

The applicant sought approval of minutes of settlement providing for joint custody and unsupervised access through a consent order submitted by basket motion.

The court refused to approve the proposed order due to insufficient evidence regarding whether the respondent qualified as a “parent” under Rule 35.1 of the Family Law Rules and because required police record checks and Children’s Aid Society reports had not been filed as required by ss. 21.1 and 21.2 of the Children’s Law Reform Act.

The record disclosed prior criminal and child protection concerns involving the respondent, including a sexual assault conviction and CAS involvement with another child.

The court held that adequate disclosure is required before approving consent custody orders, even where parties agree.

The motion was stayed pending the filing of further affidavits, police record checks, CAS reports, and additional explanations regarding criminal history and child protection involvement.

In a family law motion involving separated spouses with two young children, the court addressed interim issues concerning the children’s contact with farm animals, the potential sale of the matrimonial home, interim child support, and police enforcement of custody and access.

The court ordered that goats and sheep kept at the property be secured in an enclosure preventing unsupervised contact with the children and requiring adult supervision for any interaction.

The motion regarding the sale of the matrimonial home was adjourned to permit the applicant an opportunity to submit a formal purchase offer capable of completion on the same terms as a third‑party purchaser.

Pending full financial disclosure, the court ordered interim interim child support based on estimated incomes under a shared custody set‑off.

The request for interim police enforcement of custody and access was adjourned absent evidence that either party had failed to comply with the recent custody order.

A costs decision following interim custody motions in family proceedings.

The respondent to the motion sought costs after being the successful party on the substantive issue concerning a rotating 48‑hour parenting schedule.

The court found the successful party was presumptively entitled to costs but considered partial success by the other party on daycare arrangements, the absence of formal offers to settle, and unreasonable unilateral conduct relating to parenting time.

Balancing these factors, the court reduced the amount sought and ordered partial costs payable.

The applicant sought to adjourn a family law custody and access trial until after the resolution of related criminal charges, arguing that proceeding with the family trial first would prejudice his criminal defence by requiring disclosure of facts relevant to the allegations.

The respondent opposed the adjournment, asserting that delay would prejudice both her and the parties’ child.

The court considered statutory protections under the Ontario Evidence Act, the Canada Evidence Act, and the Canadian Charter of Rights and Freedoms that protect witnesses from self‑incrimination in subsequent proceedings.

Applying the discretionary principles governing adjournments and emphasizing the best interests of the child, the court held that an indefinite delay pending completion of criminal proceedings would not serve the child’s interests.

The request to adjourn the trial pending the criminal trial was therefore dismissed, though other potential adjournment issues were left to the trial management judge.

The appellant appealed an order varying a permanent custody order.

The Divisional Court allowed the appeal and set aside the variation order, adopting the reasons of the judge who granted leave to appeal.

The court noted that the original custody order was made after a full hearing with full reasons, and the concerns expressed in Sypher v. Sypher did not apply.