Vershone C. Herd

The moving party brought a motion for leave to appeal an order dated December 20, 2023.

The Divisional Court dismissed the motion for leave to appeal without costs.

The applicant brought a family law proceeding which the respondent argued was statute-barred under s. 7(3)(b) of the Family Law Act.

The respondent claimed the parties separated in 2001, while the applicant claimed they separated in 2009.

The court examined the parties' living arrangements, travel, and communications to determine when they separated with no reasonable prospect of resuming cohabitation.

The court found the parties continued to cohabit until June 30, 2007, meaning the applicant's 2010 proceeding was commenced well within the six-year limitation period.

The applicant sought leave to appeal an order that found records from marriage counselling sessions privileged and not disclosable in matrimonial litigation.

The court applied the strict two-part test for leave to appeal under Rule 62.02(4)(b), finding no reason to doubt the correctness of the motion judge's decision and no matters of general importance beyond the immediate parties.

The motion for leave to appeal was dismissed.

Following the dismissal of the respondent's appeal regarding a credit against child support arrears, both parties made written submissions on costs.

The applicant sought $5,793.03, while the respondent sought $9,434.35 or no costs, arguing that the applicant's actions delayed settlement.

The court applied the presumption that the successful party is entitled to costs under Rule 24(1) of the Family Law Rules.

After considering the factors in Rule 24(11) and prior attendances, the court awarded the applicant costs fixed at $4,000.

The appellant father appealed final orders varying a prior child support order, which terminated his support obligations for two adult children at specific dates and granted him a $12,000 credit toward arrears.

He argued the trial judge failed to properly determine the amount of arrears and inadequately explained the basis for the credit.

Applying the appellate standard from Housen v. Nikolaisen, the court held that the trial judge’s findings were grounded in the evidentiary record and disclosed no palpable and overriding error.

The evidentiary deficiencies created by both parties justified the trial judge’s approach to determining termination dates and granting a limited credit.

The appeal was dismissed.