Yanik S. Guilbault

The appellant appealed a motion judge's order varying spousal support due to the respondent's imminent retirement and dismissing her motion for retroactive adjustment.

The motion judge found a material change in circumstances based on the appellant's increased medical expenses and the respondent's retirement, ordering support to terminate after a two-year transitional period.

The Court of Appeal found no reversible error in the motion judge's analysis of the compensatory support termination or the denial of retroactive support, noting the deferential standard of review for support orders.

The appeal was dismissed.

The applicant sought to terminate or reduce spousal support obligations, effective December 9, 2021, and a reimbursement of past support, or alternatively, a reduction and termination date.

The respondent argued no material change occurred and sought an increase or maintenance of current support.

The court found a material change in circumstances due to the applicant's retirement and health issues, but determined that spousal support should not terminate due to the respondent's disability and ongoing need.

The court ordered a lump sum payment of $125,000 from the applicant to the respondent for all past and future spousal support, emphasizing finality and financial clarity, and rejecting the respondent's higher lump sum request and the applicant's lower one.

The applicant sought costs of $15,552.88 following a successful motion regarding parenting time and the sale of the home.

The respondent argued costs should be in the cause.

The court found the applicant was the successful party, though not fully successful, and had made a reasonable offer to settle.

The court fixed the applicant's costs at $10,000, inclusive of costs thrown away from a prior adjournment, with payment deferred until the final determination of the case due to income disparity and the holding of house sale proceeds in trust.

The applicant sought an order for the respondent to vacate the family home or for its sale, shared decision-making authority, and increased unsupervised parenting time.

The respondent opposed and sought continued supervised contact and child support, also claiming a valid marriage or unjust enrichment for a trust claim on the home.

The court found the respondent's claims regarding marriage validity and unjust enrichment lacked sufficient merit to prevent the sale of the home.

The court ordered the sale of the home, with proceeds held in trust, and ordered the applicant to pay child support upon the respondent vacating.

While declining shared decision-making at this stage, the court increased the applicant's parenting time but maintained supervised exchanges and imposed conditions related to alcohol consumption and anger management, pending further review or an OCL report.

The respondent mother brought a motion at the opening of a family law trial to determine the admissibility of evidence regarding the applicant father's professional misconduct as a police officer.

The father argued that the Police Services Act created an absolute privilege over all information related to his disciplinary proceedings.

The court held that while documents prepared for the disciplinary process and testimony from those involved are inadmissible and non-compellable, the underlying facts of the misconduct, the charges, and the outcome are provable facts at trial.

The court also rejected arguments that the father had waived privilege or that the Divorce Act paramountcy overrode the provincial statute.

On appeal from a trial judgment in a family law matter following marriage breakdown, the appellant challenged the trial judge's order requiring her to pay the respondent $128,560 for his interest in the matrimonial home and requiring the respondent to pay an equalization payment of $166,674.64 by pension rollover.

The appellant argued the trial judge erred in refusing to set off the respondent's equity in the home against the equalization payment owed.

The Court of Appeal dismissed the appeal, finding the trial judge had jurisdiction to make the order and did not err in exercising his discretion to refuse the set-off.

The respondent sought to vary a spousal support order due to the applicant's increased income, as per a material change clause in their minutes of settlement.

The court first addressed a jurisdictional issue arising from the parties remaining legally married despite a final support order, deeming the order to be under the Family Law Act.

On the merits, the court found a material change in circumstances due to the applicant's income increase of over $20,000.

The court increased spousal support by $500 per month, retroactive to January 1, 2015, from $3,817 to $4,317, emphasizing that variation is not a de novo review and that support was primarily needs-based.

This endorsement addresses the issue of costs following an interim order regarding child access and spousal support.

The applicant mother sought $5,000 in costs, arguing substantial success on spousal support and parenting arrangements.

The respondent father argued for no costs or a reduced amount, citing mixed success and the mother's alleged unreasonableness.

Applying Family Law Rule 24, the court found the mother successful on spousal support and that the parenting outcome was more aligned with her proposal.

The court ordered the father to pay the mother $2,500 in costs.

The respondent brought a motion in his family law proceedings to compel his former solicitor to deliver his complete file to his new lawyer.

The former solicitor resisted, claiming a solicitor's lien for unpaid fees.

The motion judge ordered the file to be turned over temporarily for copying.

The former solicitor appealed.

During the appeal hearing, the parties agreed to a variation of the order allowing the former solicitor to retain original signed documents and provide electronic copies of electronic records.

The Court of Appeal varied the order accordingly and awarded costs to the respondent.

The applicant mother and respondent father brought cross-motions for interim parenting orders and spousal support.

The father sought joint custody and equal time, while the mother sought a specific parenting schedule and $2,000 monthly spousal support.

The court maintained the existing interim parenting schedule, finding it to be in the child's best interests given his sensitivity to change.

The court also found the mother entitled to interim spousal support on a non-compensatory basis, awarding her $2,000 per month, recognizing the relationship as one of "some permanence" under the Family Law Act despite its short duration.

The appellant father appealed a Family Court order granting the mother sole custody of their two children with supervised access to him, and allowing the Children's Aid Society to withdraw its protection application.

The father argued the motions judge erred in finding a material change in circumstances, hearing the matters simultaneously, allowing the withdrawal without a full hearing, and improperly relying on a section 54 assessment report.

The Court of Appeal dismissed the appeal, finding the motions judge properly applied the test for varying custody due to parental alienation, correctly exercised discretion to hear the matters together, held an appropriate hearing for the withdrawal, and did not improperly rely on the assessment report.

Following a decision on a motion to change and a motion for withdrawal in child protection proceedings, the parties made written submissions on costs.

The Applicant Mother sought substantial indemnity costs against the Respondent Father, while the Father sought costs against both the Mother and the Children's Aid Society.

The court denied costs in the child protection proceedings, noting that costs in such matters require more than mere success.

However, the court awarded costs to the Applicant Mother for the motion to change in the divorce proceedings, as she was the substantially successful party.

The court fixed costs at an elevated partial indemnity rate of $28,319.46, sanctioning the Respondent Father for his unreasonable behaviour in filing voluminous and unnecessary materials.

The appellant father appealed a motion judge's order finding him in contempt of court for using his mother as a caregiver for his children instead of the designated daycare provider, and a subsequent order imposing sanctions.

The respondent mother moved to quash the appeal as out of time.

The Court of Appeal dismissed the motion to quash, extending the time for service.

The Court allowed the appeal and set aside the contempt and sanction orders, finding that the motion judge erred by making findings of contempt that extended beyond the specific non-monetary breach alleged in the notice of motion.

The appellant appealed a motion judge's refusal to terminate his spousal support obligation following his retirement.

The appellant argued that $600,000 in dividends he received from a family corporation should have been treated as a return of capital rather than income, and that the motion judge demonstrated bias by comparing him to a 'Wall Street businessman'.

The Divisional Court dismissed the appeal, finding no error in treating the dividends as income for support purposes and concluding the judge's comments merely illustrated the different tax treatment of dividend income.

Following a prior judgment requiring payment of monies, the applicant was forced to commence additional legal proceedings to enforce payment when the respondent failed to comply.

The court considered written submissions regarding costs incurred during enforcement proceedings between July and September 2012.

The court found the respondent provided no satisfactory explanation for failing to make the ordered payments without further litigation.

The applicant ultimately succeeded in obtaining the payments owed.

The court held it was fair and just to award the applicant her legal costs incurred in enforcing the judgment.

Following a family law trial addressing parenting issues, interpretation of a cohabitation agreement, division of property, retroactive and ongoing child support, and retroactive and ongoing spousal support, the court determined the appropriate costs award.

The applicant was substantially successful on the majority of the financial issues, including the interpretation of the cohabitation agreement, equal division of the matrimonial home, retroactive and ongoing child support, and spousal support.

Although both parties made settlement offers, none triggered the mandatory consequences under Rule 18(14), though the applicant’s offers were generally closer to the trial outcome.

Considering the presumption of costs under Rule 24(1), the parties’ conduct, the high-conflict nature of the litigation, and the substantial legal expenses incurred, the court ordered a significant contribution to the successful party’s costs.

The applicant and respondent separated after a 10-year marriage.

At trial, the court resolved several parenting issues, including extracurricular activities, telephone access, and the use of a parenting coordinator.

The court imputed an income of over $90,000 to the respondent, finding he was intentionally under-employed and had unreasonably depleted his assets through risky stock trading.

Consequently, the respondent's claim for spousal support was dismissed, and he was ordered to pay his proportional share of retroactive and ongoing section 7 expenses.

Finally, the court interpreted the parties' pre-marital cohabitation agreement, finding that it clearly excepted the matrimonial home from its operation, entitling the applicant to one-half of its value.