Robert Macdonald Stewart

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.

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.

Costs decision following a family law motion in which the respondent sought temporary spousal support from the applicant.

The court had previously determined that although the respondent established a prima facie entitlement to non‑compensatory spousal support, no interim support was payable due to the applicant’s financial inability to contribute while carrying the primary financial responsibility for the children.

Applying s. 131 of the Courts of Justice Act and rr. 18 and 24 of the Family Law Rules, the court held that the applicant was the successful party on the motion.

The respondent’s argument that success was divided and that costs should be reserved to trial was rejected.

Costs of $3,500 plus HST were awarded to the applicant, payable from the respondent’s share of the matrimonial home sale proceeds.