Terry W. Hainsworth

Following a three-day family law hearing concerning child support for an adult child pursuing post-secondary education, the court addressed costs.

The litigation history between the parties was extensive and acrimonious, involving numerous motions and prior proceedings regarding child support obligations.

The self-represented applicant sought costs on the basis that the final award marginally exceeded the respondent’s final offer to settle.

The court found that both parties engaged in disproportionate and unproductive litigation conduct, including excessive disclosure demands and prolonged disputes over relatively limited financial issues.

Considering the mixed success and conduct of both parties, the court concluded that neither party should receive costs.

In a family law trial where most issues were resolved on consent, the only dispute concerned the manner of satisfying the equalization obligation.

The court held that ss. 9 and 10.1 of the Family Law Act do not create any presumption that equalization must be effected by an immediate transfer from a pension plan.

Applying the statutory factors, the court found the equalization amount was modest relative to the liquid assets available from the pending sale of the matrimonial home, and that a pension transfer was not appropriate on these facts.

A divorce was granted and the applicant was ordered to pay the respondent $35,660.

Following a successful motion by the estate trustee to set aside $100,000 from an estate for anticipated legal fees, the court determined the appropriate costs award.

The moving party sought over $10,000 in costs, which the responding party argued were excessive.

The court applied the reasonableness principles under the Family Law Rules and reduced the claimed fees, disallowing a substantial Westlaw research disbursement due to lack of evidence that it represented a proper out‑of‑pocket expense.

The court awarded a reduced lump sum costs amount and ordered that payment be deferred until the proceeding is finally resolved.

The decision also clarifies that a losing party is not required to file a bill of costs when challenging the opposing party’s claim.

In a family law motion to change a prior support order, the applicant sought extensive financial disclosure from three corporations in which the respondent held shares to determine the respondent’s true income for child support purposes.

The court considered the criteria under rule 19(11) of the Family Law Rules governing disclosure from non-parties.

It held that broader disclosure was warranted from the corporation wholly owned by the respondent because its assets were directly relevant to assessing his means.

However, disclosure requests concerning asset details from corporations in which the respondent held only minority interests were denied on proportionality grounds.

Partial production of corporate tax summaries and related documents was ordered with redactions.

An estate trustee brought a motion seeking authorization to set aside estate funds to pay anticipated legal fees incurred in defending a surviving spouse’s claim for equalization of net family property.

The respondent argued that the trustee should personally fund the litigation because he was also a beneficiary and the estate assets might be insufficient to satisfy a potential equalization payment.

The court reaffirmed the long‑standing principle that trustees are entitled to indemnification from estate assets for reasonably incurred legal expenses in the administration and defence of the estate, including litigation expenses.

The existence of a co‑existing interest as beneficiary did not defeat the trustee’s right to indemnity.

The court authorized $100,000 to be set aside from the estate for legal fees subject to oversight and without prejudice to the respondent’s right to challenge reimbursement at trial.

The mother sought costs following a contested motion regarding child access.

The mother had made an offer to settle that mirrored the final order, except for a restriction on the children's contact with a specific individual and a provision for no costs.

The father had unreasonably insisted on supervised access, necessitating the contested motion.

The court found the mother was presumptively entitled to costs under Rule 18(14) of the Family Law Rules.

However, the court reduced the costs awarded due to the mother's unreliable evidence and divided success on a motion to strike.

The father was ordered to pay costs fixed at $6,030.53.

The applicant estate trustee brought a motion to dismiss the family law proceeding for delay.

The respondent surviving spouse brought a cross-motion to suspend the administration of the estate to preserve assets for a potential equalization payment.

The court dismissed the applicant's request for a trial of an issue, finding the motion straightforward.

The court dismissed the motion for delay, noting that both parties contributed to the delay and there was no substantial risk to a fair trial.

The court granted the respondent's motion, ordering the estate to retain $2.2 million to secure her potential equalization claim, which included a potential interest in a $6.6 million settlement from a Florida lawsuit.

In a family law proceeding, the respondent brought a motion seeking to dismiss or stay the applicant’s motion to change a separation agreement on the basis that the applicant had failed to pay approximately $42,000 in spousal support arrears.

The court considered whether such a motion could proceed before a case conference under the Family Law Rules.

The court held that a request to stay or dismiss a motion to change due to non‑payment of support arrears engages substantive rights and therefore cannot be heard prior to a case conference unless an exception applies.

The respondent failed to demonstrate urgency or hardship sufficient to bypass the conference requirement.

The motion was therefore adjourned to be addressed after the scheduled case conference.

The applicant brought a motion for interim child and spousal support, and for the transfer of a property to joint names pursuant to an interim separation agreement.

The parties, both physicians, had a significant income disparity.

The court ordered the respondent to transfer the property to joint names, fixed the applicant's income at $60,000 and the respondent's income at $550,000, and ordered the respondent to pay $6,572 monthly in table child support, $10,500 monthly in spousal support, and 69.5% of section 7 expenses.

Following trial reasons dealing with child support, spousal support, and division of the children’s RESPs, the court addressed costs where the parties were unable to agree.

The applicant sought recovery of legal fees and disbursements after filing a bill of costs exceeding $46,000.

The respondent accepted most of the time claimed but argued for a reduction based on partial indemnity and divided success, particularly relating to an unsuccessful retroactive section 7 expense claim.

Applying Rule 24(11) of the Family Law Rules and considering the parties’ offers to settle, the court reduced the fees and certain disbursements.

Costs were fixed at $32,789.43 inclusive of HST and disbursements and were ordered to constitute a support order enforceable under the Family Responsibility and Support Arrears Enforcement Act, 1996.

Following an 11‑day family law trial primarily concerning ownership of a barn and chicken production quotas registered in the respondent’s name, the court determined costs.

The respondent had been successful on the principal property issues, which drove the length and expense of the litigation, while the applicant had advanced a hard-line position seeking ownership of those assets.

The court considered Rule 24 of the Family Law Rules and assessed the parties’ conduct, complexity of issues, time spent, and reasonableness of positions.

Although the respondent sought substantial indemnity costs exceeding $233,000, the court limited recovery to partial indemnity due to non‑compliance with Rule 18 concerning offers to settle.

After reducing certain legal accounts for duplication of work, the court ordered the applicant to pay costs of $123,884.40.

The applicant and respondent separated after a long relationship involving chicken farming.

The applicant claimed that a barn and chicken quotas registered in the respondent's name were held in trust for him or that she was unjustly enriched.

The court found no evidence of an express trust and no unjust enrichment, as the respondent had financed and worked for her own assets.

The court ordered the applicant to pay an equalization payment of $55,798.83, granted joint custody of their child with primary residence to the respondent, and ordered the applicant to pay $600 per month in child support.

The moving party father brought a motion to change child support after one of the children moved in with him.

The responding party mother sought a review of spousal support, retroactive and prospective section 7 expenses for their daughter's competitive dance, and distribution of RESP funds.

The court found the father had manipulated his corporate income and imputed additional pre-tax corporate profits to him for support purposes.

Spousal support was ordered to continue indefinitely at $4,000 per month, though the mother was required to make efforts to become self-sufficient.

The mother's claim for retroactive section 7 expenses was dismissed due to lack of notice, but prospective expenses were ordered.

The RESP capital was distributed between the parties.

In a matrimonial proceeding involving ownership of a cottage property, the moving parties sought to add Legal Aid Ontario as a party because it had registered liens against the property to secure legal aid services provided to one spouse.

The court considered the test under Rule 7(5) of the Family Law Rules for adding a party.

It held that a person will generally only be added if they are a necessary party and if an order can be made for or against them, although the court retains a narrow discretion to add parties without a legal interest in exceptional circumstances.

Because no order could be made for or against Legal Aid Ontario, it had no involvement in the underlying matrimonial dispute, and no unusual or egregious circumstances existed, the court declined to add it as a party.

The appellant appealed a judgment ordering time-limited spousal support.

The trial judge had accepted evidence that the appellant would return to the workforce once the children were in school full-time, noting her significant earning capacity.

The Court of Appeal found no error in principle in the trial judge's consideration of the appropriate factors and dismissed the appeal, noting that the appellant could seek a variation in the future if circumstances warranted.

The appellant sued her former family law solicitor for negligence and breach of fiduciary duty regarding a matrimonial settlement.

At trial, the solicitor admitted negligence concerning the treatment of a cottage as a matrimonial home and advice on spousal support, resulting in a damages award.

On appeal, the appellant argued the negligence permeated the entire settlement.

The Court of Appeal dismissed most of the appeal but found the trial judge erred in setting the commencement date for spousal support damages by double-counting a line of credit debt.

The Court adjusted the commencement date, increasing the spousal support damages by $6,210.

The appellant appealed an interim order for spousal and child support, arguing the motions judge erred by including $100,000 from a share redemption as income available for support.

The Divisional Court dismissed the appeal, finding the motions judge correctly applied the Child Support Guidelines to attribute corporate income to a sole shareholder.

The court also admitted fresh evidence that confirmed the availability of the funds, noting any necessary adjustments could be made at the upcoming trial.

The wife appealed the trial judge's dismissal of her claim for spousal support for 2002 and 2003, and the denial of a proportionate sharing of childcare costs.

The Court of Appeal held that the trial judge erred in characterizing the request for 2002 and 2003 support as retroactive, finding instead that it was a claim for prospective support from the date of notice.

The Court also found that the trial judge erred in requiring childcare expenses to be 'extraordinary' under section 7 of the Federal Child Support Guidelines, as the provision only requires them to be necessary and reasonable.

The appeal was allowed, with the husband ordered to pay a lump sum for spousal support and a proportionate share of childcare expenses.

The appellant husband appealed a trial judgment awarding the respondent wife $1,000 per month in spousal support, arguing it constituted impermissible double recovery from his equalized pension.

The wife cross-appealed for increased retroactive support.

The Divisional Court allowed the husband's appeal, finding the trial judge erred in law by encroaching on the equalized survivor pension to fund support.

The court reduced spousal support to $140 per month, representing half of the unequalized pre-marriage portion of the pension, and dismissed the wife's cross-appeal.

The appellant husband appealed a trial judgment regarding child support, spousal support, and the equalization of net family property following a 17-year marriage.

The Court of Appeal upheld the trial judge's decision to average the husband's income over three years for child support purposes and to award $5,000 monthly in spousal support, finding the allocation of disposable income reasonable.

The court also upheld the trial judge's treatment of post-separation mortgage payments as a voluntary benefit to the wife.

However, the court allowed the appeal regarding the husband's golf club membership, finding insufficient evidence to determine its value or status as property for equalization.