Timothy Minnema

On a motion for temporary child support under the Divorce Act and the Federal Child Support Guidelines, the court considered whether income should be imputed to an unemployed parent and at what level.

The payor parent had been unemployed for several years following the loss of a high-paying job but asserted ongoing efforts to secure comparable employment.

The court held that a parent with child support obligations must earn what they are capable of earning and may be imputed income on an interim basis where prolonged unemployment persists.

Relying on prior earning history and limited evidence of current earning capacity, the court imputed income of $40,000 annually and ordered temporary guideline child support and proportional section 7 expenses.

Issues of retroactive support, retroactive special expenses, and life insurance were deferred to trial.

The court considered confirmation of a provisional order from the Court of Queen’s Bench of Alberta varying an earlier divorce judgment respecting child and spousal support.

Certain provisions relating to child support termination and post-secondary expenses were confirmed or varied on consent.

The court determined that retroactive child support should not be varied beyond June 1, 2009 pursuant to the parties’ Minutes of Settlement, resulting in a child support overpayment to be reimbursed to the payor.

The court also addressed variation of spousal support under s. 17 of the Divorce Act, finding a material change in circumstances and setting support at the low range of the Spousal Support Advisory Guidelines.

Ongoing spousal support was ordered at $2,400 per month commencing November 1, 2011.

Costs decision following a family law motion to change.

The applicant was entirely successful on the motion and sought costs on a substantial indemnity basis exceeding $21,000, while the respondent requested that no costs be awarded.

The court applied Rule 24 of the Family Law Rules, finding the successful party was presumptively entitled to costs but that neither party had acted in bad faith and the issues were not complex.

Considering the parties’ conduct, the financial circumstances of both parties, and the applicable jurisprudence, the court declined to award substantial indemnity costs and fixed costs on a partial indemnity basis.

In a family law motion to change child support, the applicant sought leave on the eve of trial to amend pleadings, conduct questioning of the respondent before trial, and obtain additional disclosure.

The proceeding had already been set down for trial following a settlement conference.

Applying Rule 48.04 of the Rules of Civil Procedure, adopted through the Family Court Rules, the court held that motions or discovery after a matter is placed on the trial list require leave and will only be granted in exceptional circumstances.

The court found no substantial or unexpected change in circumstances justifying procedural discovery and concluded that the proposed amendment would significantly expand the issues and delay the trial.

Leave was refused and the motion dismissed.

Following a family law trial involving spousal support, the respondent sought substantial costs on a full recovery basis exceeding $25,000.

The applicant opposed a costs award or proposed a reduced amount.

Applying Rule 24 of the Family Law Rules, the court held the respondent was substantially successful despite a reduction in spousal support and therefore presumptively entitled to costs.

The court rejected full recovery, removed costs for conferences and motions previously addressed by other judges, and considered the parties’ financial circumstances.

A reduced costs award was granted and ordered enforceable as support.

The applicant sought to retroactively reduce child support and terminate spousal support after voluntarily leaving long-term employment for lower-paid work and later becoming unemployed.

The court held that the voluntary job change constituted intentional underemployment and imputed income based on the applicant’s prior earnings.

As a result, child support was not reduced and continued based on the imputed income.

Although no material change justified retroactive termination of spousal support, the court conducted a contractual review date analysis and reduced spousal support to encourage the recipient’s partial self‑sufficiency.

Arrears were secured through a transfer of up to one-half of the applicant’s locked‑in retirement account in accordance with the Pension Benefits Act.

The plaintiff corporation sued its real estate agent and brokerage for breach of fiduciary duties arising from the sale of a commercial property.

The court found that the agent acted as an undisclosed dual agent, failed to provide required written disclosure under the Real Estate and Business Brokers Act Code of Ethics, failed to recommend a counter-offer, failed to disclose material information relevant to the transaction, and failed to strongly encourage independent legal advice before execution of the agreement.

The court held that these breaches deprived the seller of an opportunity to negotiate a better deal and constituted a breach of fiduciary obligations owed by a real estate agent to a client.

Although the plaintiff could not prove damages from an improvident sale, the agent had no contractual entitlement to a commission and, in any event, forfeited the commission due to the fiduciary breaches.

The defendants were ordered to return the commission plus prejudgment interest.

The applicant brought a motion to strike the respondent’s pleadings due to repeated non‑compliance with disclosure orders in a family law proceeding.

Multiple court orders had required financial disclosure and the retention of a business valuator, including a consent order providing that the respondent’s pleadings would be struck upon non‑compliance.

The respondent admitted failing to meet the timelines and only attempted partial compliance after being served with the motion.

The court held that the respondent’s conduct constituted persistent and deliberate disregard for court orders and the litigation process.

Applying the test for striking pleadings under the Family Law Rules, the court found the circumstances sufficiently egregious and ordered the respondent’s Answer and Claim struck.

The plaintiffs sued the defendant municipality following a motor vehicle accident.

After the action was set down for trial, the defendant sought leave under Rule 48.04 to bring a motion for summary judgment based on the plaintiffs' failure to provide notice within 10 days as required by the Municipal Act.

The court found no substantial and unexpected change in circumstances, but granted leave on the basis that the summary judgment motion had merit and proceeding with it would not cause non-compensable prejudice to the plaintiffs.

The child protection agency brought a summary judgment motion seeking a final order placing a child in the custody of the maternal grandfather under s. 57.1 of the Child and Family Services Act.

The child had lived with the grandfather under society supervision for over three years and was doing well in that placement.

One parent opposed the motion and sought delay to demonstrate rehabilitation from substance abuse and criminal issues, arguing the matter should proceed to trial.

The court held that the responding party failed to demonstrate a genuine issue requiring a trial under Rule 16 and that the child’s need for permanency and stability outweighed the request for additional time.

Summary judgment was granted placing the child in the grandfather’s sole custody with parental access at the grandfather’s discretion.