Timothy N. Sullivan

The applicant mother was entirely successful on her motion to change the children's primary residence, establish parenting time, and obtain child support.

She sought costs for the motion.

The court found that the applicant's offer to settle was more favourable to the respondent than the final order, entitling her to full recovery costs under Rule 18(14) of the Family Law Rules.

After reducing some hours that pertained to the overall application rather than the motion, the court awarded the applicant costs of $11,492.38.

The applicant mother brought a motion seeking a temporary order to relocate the primary residence of the parties' two children from Ottawa to Brockville, Ontario, and for child support.

The respondent father opposed the motion.

The court found a material change in circumstances based on a clause in the separation agreement requiring consent or a court order for relocation.

Applying the best interests of the child test from Gordon v. Goertz and interim mobility factors from Plumley v. Plumley, the court granted the temporary order permitting the move, citing the mother's new full-time employment, the strong family support network in Brockville, and the children's strong preference to relocate.

The father's parenting time was adjusted, and child support was ordered effective August 1, 2018.

A request for child counselling was declined on a temporary basis due to a lack of clear necessity and the joint decision-making authority of the parents.

Following a motion to change regarding spousal support and post-secondary educational expenses, both parties sought costs.

The applicant claimed $34,397.90 and the respondent claimed $36,958.23.

The court found divided success, as the applicant did not succeed in obtaining retroactive repayment of support and the respondent did not succeed in her claim for educational expenses.

Noting that neither party obtained a final order more favourable than their offers to settle, and applying the principle that costs must be decided at each step, the court ordered that each party bear their own costs.

The applicant brought a motion to change a final order to terminate spousal support, citing a material change in circumstances due to his job loss and the respondent's increased income.

The respondent brought a cross-motion for retroactive section 7 expenses for the children's post-secondary education and a motion for contempt regarding the applicant's failure to maintain life insurance.

The court found a material change in circumstances and terminated spousal support.

The court dismissed the claim for retroactive section 7 expenses due to the respondent's significant delay and the children's ability to fund their own education.

The contempt motion was also dismissed because the original order lacked a specific amount for the life insurance policy.

The plaintiffs were awarded $12,650.25 plus prejudgment interest following a three-day construction lien trial.

The defendants argued costs should be limited to 25% of the award under the former Mechanics Lien Act, but the court noted the revised Construction Lien Act leaves costs to the court's discretion.

Applying Rule 57, the court held that the proportionality doctrine should be tempered so successful plaintiffs suing for small amounts are not punished by unrealistically low costs awards.

The court awarded the plaintiffs $13,325.97 in costs on a partial indemnity basis.

The parties settled custody, access, and child support arrears.

The remaining issues were the quantum of ongoing child support and costs.

The applicant father sought a suspension of ongoing child support and enforcement of future arrears, arguing undue hardship under s. 10 of the Child Support Guidelines due to a stroke, depression, alcoholism, and a claw-back of disability payments.

The respondent mother resisted this application.

The court found that the father had demonstrated "exceptional and unusual" circumstances constituting undue hardship.

Consequently, the payment of the table amount of child support and the enforcement of any future arrears were suspended until the father's financial circumstances improved, with only the agreed-upon arrears payment continuing.

No costs were awarded as both parties achieved partial success.

The respondent father brought an urgent motion for interim access to his adoptive daughter, Victoria, aged 13.

The parties had been separated since 2011, and access difficulties escalated in 2014, ceasing entirely in September 2015.

The father alleged parental alienation, while the mother cited Victoria's wishes and negative home environment with the father's new family.

The court, considering the child's best interests under the Divorce Act and Children's Law Reform Act, found that both parents had failed to adequately support Victoria through family changes.

The court ordered a gradual resumption of access visits, starting weekly and increasing to twice weekly, to occur in the community, with a review period.

The court emphasized the custodial parent's positive obligation to encourage contact and cautioned against making findings of parental alienation without individualized assessment.

The parties brought a motion concerning the implementation of a mediated final separation agreement.

A dispute arose over whether the respondent could deduct disputed special or extraordinary expenses under s. 7 of the Federal Child Support Guidelines from child support payable to the applicant.

The court held that permitting unilateral offsets against child support would undermine the predictability and regularity of support payments and could create arbitrariness and conflict contrary to the best interests of the children.

The agreement was ordered into effect with amendments removing the offset provision and requiring proof of payment for reimbursement of extraordinary expenses.

Additional financial adjustments and administrative orders were made, and each party was ordered to bear their own costs.

A client brought a motion opposing confirmation of a solicitor–client Certificate of Assessment and seeking reimbursement of fees and disbursements paid to the solicitor in a matrimonial proceeding.

The client argued that he was unable to attend the continuation of the assessment hearing due to circumstances beyond his control and raised multiple allegations regarding the solicitor’s billing practices and services.

The court held that the client failed to provide a satisfactory explanation for his absence and that his attempts to notify the court were inadequate.

On the merits, the court found the solicitor’s accounts to be supported by documentation and reasonable given the scope of the matrimonial litigation.

The client failed to establish valid grounds to reopen the assessment.

The moving party brought a motion for contempt alleging the respondent repeatedly interfered with his court‑ordered parenting time following a trial decision incorporating recommendations from a parenting assessment.

The court reviewed the legal test for civil contempt under Rule 31 of the Family Court Rules and the requirement that the alleged contemnor knowingly and deliberately breach a clear court order proven beyond a reasonable doubt.

Because the trial judgment had not yet been formally settled and both parties mistakenly believed it was not yet operative, the court found the respondent did not knowingly breach the order.

Although the respondent’s conduct in several incidents interfered with the moving party’s access, the knowledge element required for contempt was not proven.

The contempt motion was dismissed, but the respondent was ordered to pay costs due to unreasonable conduct regarding access.

Following the dismissal of a motion to amend a counterclaim to add a plea of sexual battery, the court addressed the issue of costs.

The court reaffirmed the principle under Rule 57.03(1) of the Rules of Civil Procedure that the successful party on a contested motion is ordinarily entitled to costs unless justice requires otherwise.

Although some amendments were unopposed, the moving party was unsuccessful on the contested portion of the motion.

The court determined there was no sufficient reason to depart from the usual rule and awarded costs on a partial indemnity scale.

The defendant sought leave to amend a counterclaim to add a cause of action for sexual battery based on information discovered in the plaintiff’s compelled medical records during discovery.

The court considered the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure, which restricts the use of discovery evidence to the proceeding in which it was obtained.

Although the proposed amendment was legally tenable and not statute‑barred, the court held that using discovery‑produced medical records to initiate a new cause of action would breach the deemed undertaking rule absent leave.

Applying the balancing test from appellate authority, the court found the potential injustice to the plaintiff and the public interest in full and frank discovery outweighed any prejudice to the defendant.

Relief from the deemed undertaking was denied and the amendment adding the new cause of action was refused.

The applicant sought to retroactively vary a divorce judgment requiring monthly spousal support and to rescind accumulated arrears exceeding $300,000.

The court held that a variation requires proof of a material change in circumstances and applied the definition from Willick v. Willick.

The evidence established that since 2005 the applicant’s income was minimal and he lacked the ability to pay ongoing support, justifying a reduction of support to zero effective January 2005.

However, due to inadequate disclosure and lack of evidence regarding earlier years, the court declined to vary the order prior to that date.

Arrears accumulated between January 2005 and October 2012 were eliminated, while earlier arrears remained owing.