Monique Rae Bennett

This is Part 2 of a judgment resolving outstanding family law issues following initial findings.

The court determined retrospective and ongoing child and spousal support payments, the tax treatment of retroactive spousal support, and the duration of spousal support.

It also addressed equalization payment calculations, including contingent tax liabilities on corporate and cottage assets, and post-equalization adjustments related to a joint line of credit.

The court clarified that new expert reports not presented at trial could not be relied upon for proving contingent tax liabilities.

The parties separated after a 24-year marriage.

The court resolved several contested issues regarding property division, child support, and spousal support.

The court found the husband had a 50% beneficial interest in a corporation held solely in the wife's name based on a resulting trust.

The court also determined the husband's income for child support purposes by attributing a portion of the pre-tax corporate income to him, rejecting his argument that all retained earnings were necessary for capital expenditures.

Finally, the court found the wife entitled to indefinite spousal support on both compensatory and non-compensatory grounds.

The applicant brought a motion within her Motion to Change seeking non-dissipation and vesting orders against the respondent's assets, primarily to secure an unfulfilled pension equalization payment and potentially revive spousal support.

The court dismissed the motion, finding that the applicant failed to provide sufficient evidence of a real risk of asset dissipation by the respondent or to establish a prima facie case for spousal support, as the spousal support release remained valid.

The court noted that both parties shared responsibility for delays in pension division.

Following an eight-day family law trial where the mother was the more successful party, the court determined issues of interest and costs.

The parties consented to pre-judgment interest at 1.8% and post-judgment interest at 2%.

The mother sought costs of approximately $188,000 on a full indemnity basis, citing the father's unreasonable behaviour and her offers to settle.

The court found both parties engaged in some unreasonable behaviour and that the mother's offers did not trigger the cost consequences of Rule 18.

Applying principles of proportionality and reasonableness, the court fixed costs payable by the father at $55,000.

The parties separated after a short marriage and cohabitation of 45 months.

The father sought shared decision-making responsibility and a 2-2-3 parenting schedule, while the mother sought sole decision-making and a specific parenting schedule, citing a history of family violence.

The court found that the father had engaged in family violence through a pattern of coercive control and inability to manage anger, making shared decision-making inappropriate.

The mother was granted sole decision-making responsibility and the children's primary residence, with the father receiving specified parenting time.

The court also ordered the father to pay child support, lump sum spousal support of $2,750, and the full presumptive equalization payment of $211,000, finding that the amount was not unconscionable despite the short cohabitation.

The respondent brought a motion to change his spousal support obligation due to job loss and financial difficulties.

The applicant brought a cross-motion seeking to stay the respondent's motion until he complied with a prior final order regarding spousal support arrears and joint lines of credit.

The court dismissed the applicant's motion to stay, finding the respondent's non-compliance was not deliberate or wilful, and directed the respondent's motion to change to proceed to trial, as oral evidence was necessary to determine if a material change in circumstances warranted variation.

The parties separated after a 23-year marriage.

The respondent husband, who was the primary breadwinner during the marriage, lost his job post-separation due to alcohol abuse and sought interim spousal support from the applicant wife, whose income had increased.

The respondent also sought co-signing authority over the children's RESP account.

The court dismissed the respondent's motion for spousal support, finding no compensatory or non-compensatory entitlement, and imputed an income of $85,000 to him due to intentional unemployment.

The court also denied the respondent co-signing authority for the RESP, granting sole signing authority to the applicant with an obligation to provide accounting.

The applicant sought an order to make a previously awarded trial costs order, fixed at $80,510 against the respondent, enforceable by the Director under the Family Responsibility and Support Arrears Enforcement Act, 1996 (FRSAEA).

The costs were awarded after the respondent's spousal support claim at trial was dismissed.

The court, relying on appellate decisions in Clark v. Clark and Reisman v. Reisman, found no principled reason to deny enforcement by the Director, emphasizing a broad interpretation of "support order" under s. 1(1)(g) of the FRSAEA to include costs related to a dismissed support claim.

The court granted the applicant's request, deeming the costs order a "support order" enforceable by the Director.

Following a trial where the respondent's claim for increased spousal support was dismissed, the successful applicant sought full indemnity costs of over $212,000.

The court rejected the application of civil rules scales of costs, applying the Family Law Rules principles of reasonableness and proportionality.

Finding that both parties spent excessive amounts on legal fees and failed to adhere to the principle of proportionality, the court fixed the applicant's costs at $80,510, ordering them payable in monthly installments of $620 to coincide with the respondent's ongoing receipt of spousal support.

The court reviewed written costs submissions from both parties.

Noting recent amendments to the Family Law Rules regarding costs factors and a recent Court of Appeal decision on costs principles, the court invited the parties to file supplementary written submissions limited to these new developments.

The applicant brought a motion for security for costs, seeking disclosure of the respondent's lawyer for her home sale, a certificate of pending litigation, and an order to hold net proceeds from the sale in trust until trial costs were determined.

The motion was dismissed.

The court found that the applicant's belief that the respondent was attempting to hinder costs recovery was speculative and that none of the enumerated grounds for security for costs under r. 24(13) of the Family Law Rules were satisfied.

The respondent's reasons for selling her home were found to be credible, and there was no evidence of a lack of assets in Ontario or that the case was a waste of time or nuisance.

The respondent, Josephine Anne Shelley, sought an increase in spousal support contrary to an existing separation agreement.

The applicant, John Anthony Shelley, sought a divorce and brought a motion for non-suit against the spousal support claim.

The court applied the two-stage Miglin analysis to determine whether to override the separation agreement.

The court found no fundamental flaws in the negotiation or execution of the agreement, nor any significant departure from the objectives of the Divorce Act at the time of its formation.

The court also found that the current circumstances did not represent a significant departure from the reasonable outcomes anticipated by the parties.

Consequently, Mr. Shelley's motion for a non-suit was dismissed, and Ms. Shelley's application for increased spousal support was dismissed, upholding the terms of the separation agreement.

The applicant father and respondent mother brought cross-motions for interim custody and access of their two-year-old child.

The mother sought interim sole custody due to the child's concerning behaviors following access visits and a suspected milk allergy, which the father dismissed.

The father sought interim joint custody and equal parenting time, relying on the maximum contact principle.

The court granted interim sole custody to the mother, finding the father's dismissive attitude toward the child's symptoms and need for control were not in the child's best interests.

The court ordered a graduated increase in the father's access time but rejected his request for equal parenting time, emphasizing that the maximum contact principle must be subject to the child's best interests under the Children's Law Reform Act.

This costs endorsement followed a high-conflict custody trial that settled on its seventh day.

The respondent mother sought substantial costs, and the court, applying Family Law Rule 24, determined she was more successful on the weighty issues despite mixed success on others.

The court considered the three purposes of costs (indemnity, settlement, sanction) and the parties' litigation conduct, including the father's pursuit of "unfounded" allegations and his initiative in settling.

The applicant father was ordered to pay $50,000 in costs to the respondent mother.

The respondent brought a motion to change a final support order, claiming his income was lower than attributed.

Extensive disclosure and discovery revealed that the respondent had improperly deducted personal expenses as business costs, and his actual income was not significantly lower than initially attributed.

The parties eventually settled, with the respondent's support arrears remaining largely unchanged and child support reassessed to his disadvantage.

The applicant was deemed the successful party and was awarded costs of $13,400, inclusive of disbursements and HST, enforceable by the Director of the Family Responsibility Office.

Following a family law trial concerning equalization of net family property and spousal support, the court determined costs.

The applicant was found to be the more successful party on both the property equalization issues and the spousal support issues, including the valuation date dispute and the limitation of the respondent’s support claim.

The court also considered the respondent’s unreasonable litigation conduct and delay in providing financial disclosure.

While the applicant sought full indemnity costs exceeding $131,000, the court applied proportionality and the respondent’s financial circumstances in assessing a reasonable award.

Costs were fixed at $60,000 inclusive of HST and disbursements, with funds held in court applied toward the payment.

The applicant wife and respondent husband disputed the valuation date for equalization and the husband's entitlement to spousal support.

The court found the marriage had broken down by May 2008, as the parties had ceased intimate relations, the husband was chronically unemployed, and the wife paid all expenses.

The court valued the wife's pension based on a projected retirement at age 65.

The court denied the husband's claim for indefinite spousal support, finding the wife had already fulfilled her obligations by supporting him for years post-separation.

The court terminated spousal support retroactively to March 2014 and credited the wife for overpayments made under an interim order against the equalization payment owed to the husband.

The responding parent brought a motion to change a prior final support order after one child began residing primarily with that parent while attending university.

The court considered whether previously imputed income to the other parent could be revisited on a temporary motion without evidence of a material change in circumstances.

The court held that where income had been specifically imputed in a prior order, there is a presumption the imputation remains correct unless evidence demonstrates a material change.

As no such evidence was provided, the previously imputed income figure continued to apply for purposes of the temporary variation.

Temporary support was ordered reflecting that each parent had primary care of one child, with the motion to change adjourned for a later oral hearing on a final determination.

Following a lengthy family law trial involving equalization, child support, and spousal support, the court determined outstanding issues of costs and pre‑judgment interest.

The court exercised its discretion under ss. 128 and 130 of the Courts of Justice Act to set a prejudgment interest rate of 2.6% on the equalization payment, starting from the date of separation and adjusted for advance payments.

In determining costs under the Family Law Rules, the court found both parties had engaged in bad faith conduct, but the respondent’s conduct—particularly repeated failures to provide financial disclosure and breaches of court orders—had significantly prolonged the litigation.

The court therefore awarded full recovery costs for the early phase of the litigation while reducing recovery for issues affected by the applicant’s own bad faith conduct.

Costs were fixed globally with a portion designated as a support order enforceable under the Family Responsibility and Support Arrears Enforcement Act, 1996.

In a contentious family proceeding concerning a child born in 2010, the court determined the payor parent's income for child support purposes where the payor resided and earned income in the United States.

Applying s. 20 of the Child Support Guidelines, the court calculated annual income using U.S. wage statements, rental income, allowable deductions, and an average annual exchange rate to convert U.S. earnings to Canadian dollars.

Retroactive child support was ordered to the date the claim was made, with arrears payable over time.

The court also determined the parties’ respective proportional contributions to section 7 childcare expenses after accounting for tax deductions and benefits.

Motions for contempt and for security for costs were dismissed.