Warren A. Leroy

Following a successful motion to change a final order regarding child support, the moving party sought costs of $14,188.62 on a partial indemnity scale.

The responding party argued for a reduced quantum of $4,000, citing her inability to pay and alleging unreasonable behaviour by the moving party.

The court found that the moving party was substantially successful and had behaved reasonably throughout the litigation.

Conversely, the court found the responding party behaved unreasonably by failing to make concessions despite clear evidence of a material change in circumstances and by involving the children in the litigation.

The court held that ability to pay is not a complete defence to a costs award and ordered the responding party to pay the full requested amount of $14,188.62.

The moving party father brought a motion to change a final order regarding child support and section 7 expenses, citing a significant decrease in income due to a back injury that prevented him from working as an electrician on tools.

The responding party mother opposed the motion, seeking to impute income to the father, arguing he was intentionally underemployed and hiding pre-tax corporate earnings, and requested a change to the access schedule.

The court found no material change in circumstances to warrant altering the shared custody schedule for the daughter, though it formalized the agreed-upon primary residence of the son with the mother.

The court found a material change in the father's financial circumstances due to his health and reasonable career change, declining to impute income or add pre-tax corporate earnings.

Child support was varied retroactively to the date the motion was served, applying a straight set-off under section 9 of the Child Support Guidelines, resulting in a finding that the father had overpaid child support and section 7 expenses.

The mother was ordered to repay the overpayment through monthly installments and a temporary suspension of the father's ongoing support obligations.