Patricia Lucas

Following reasons for judgment in a family law variation proceeding, the court was asked to determine costs.

The respondent to the original application sought costs exceeding $34,000, relying on relative success and prior offers to settle.

The court reviewed the governing framework under the Family Law Rules, including Rules 18 and 24, and considered relative success, settlement offers, conduct of the parties, and ability to pay.

Although the respondent achieved greater success overall, the court found both parties had partial success and had acted reasonably.

Given the responding party’s limited financial means and significant indebtedness, the court declined to award costs.

The moving party (former husband) brought a motion to vary a 2003 spousal support order due to a reduction in his income after changing employment.

The responding party (former wife) opposed and sought retroactive post-secondary expenses for their adult child.

The court found the moving party's income reduction from an average of $420,303 to $270,153 constituted a material change in circumstances.

Spousal support was varied from $7,000 to $5,850 per month, retroactive to January 2010, resulting in $46,750 in arrears owed to the responding party.

The court also ordered the moving party to pay $43,598, representing his 65% proportionate share of the child's reasonable retroactive post-secondary expenses.

In a family law proceeding involving parenting issues, the respondent brought a motion seeking production of marriage counselling notes and records created by a psychologist who conducted joint counselling sessions with the parties prior to their separation.

The court held that such records are privileged and ordinarily require the consent of both parties for disclosure.

Although the court has authority to order production of privileged documents where relevant and fair to both parties, the motion was brought too close to the scheduled trial and risked necessitating an adjournment and updates to the Office of the Children’s Lawyer report.

Given the presumption of confidentiality in marriage counselling and the late timing of the request, the court found disclosure would be unfair at that stage of the proceeding.

Both parties brought motions to change a final family law order.

The father sought to reduce or terminate his spousal support obligations due to the mother's increased employment income, while the mother sought to recover child care and activity expenses, and to change access driving obligations.

The court found a material change in circumstances, terminated spousal support, and ordered the mother to repay a net overpayment of $22,253.60.

The mother's claim for child care expenses was partially allowed, but her claims for activity expenses and changes to driving obligations were dismissed.

Following dismissal of a motion to vary a divorce order seeking termination of spousal support, the court determined the issue of costs.

The respondent was found to be substantially successful and sought costs calculated partly on a full indemnity basis relying on an earlier offer to settle.

The court considered the factors in Rule 24(10) and Rule 24(11) of the Family Law Rules and concluded that substantial indemnity costs were appropriate given the respondent’s consistent position and success at the hearing.

The court also considered the reasonableness of counsel’s hourly rate and docketed time and allowed limited disbursements.

Costs were fixed in a lump sum with additional travel disbursements permitted.

In a parenting and support dispute following the breakdown of a short common‑law relationship, both parents sought sole custody of their young child.

The court rejected joint custody due to the parties’ inability to cooperate and a pattern of aggressive conflict between them.

Applying the best interests factors under s.24 of the Children’s Law Reform Act, the court found that the child had lived in a stable environment with the mother since birth and that she was better able to act in the child’s best interests during conflict.

Sole custody was granted to the mother with significant access to the father structured to align with his parenting time with children from a prior relationship.

The court also ordered table child support, rejected the father’s claim of undue hardship under the Child Support Guidelines, ordered retroactive support, required life insurance security, and awarded limited lump‑sum spousal support.

The payor spouse applied to vary a spousal support order following voluntary retirement at the earliest eligible pension date, asserting health concerns and reduced income constituted a material change in circumstances.

The court held the applicant failed to establish that the retirement was medically necessary or supported by medical or vocational evidence.

Under s. 17(4.1) of the Divorce Act, the applicant bears the burden of proving a material change that was not reasonably foreseeable when the original order was made.

The court found the retirement was voluntary and unsupported by independent evidence, and therefore not a material change warranting variation.

The original support order was reinstated with a right of review when the applicant reaches the previously anticipated retirement age.

The appellant mother appealed a trial judgment ordering joint custody of the parties' two children, arguing the parents could not communicate, there was a history of domestic violence, and the order lacked a dispute resolution mechanism.

The Court of Appeal dismissed the appeal, finding the trial judge had an evidentiary basis to conclude the parties could effectively communicate once court orders preventing contact were lifted.

The court also found no error in the trial judge's assessment of the domestic abuse allegations or the access schedule.