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Gelman & Associate’s Irina Davis recently worked on behalf of a client who was in court to respond to a husband’s motion to change spousal support. We’re pleased to report that our client was successful before the courts, with the decision being recently released.

The original separation agreement

The husband and wife were married on June 11, 1988. They separated on July 24, 2011. While they had two children during their marriage, they were independent adults by the time of the trial, and as such there was no consideration of child support. The parties signed a separation agreement in January 2015 which provided that the husband pay the wife spousal support in the amount of $2,300 per month.

The spousal support provisions in the separation agreement were detailed and specific according to the court. The agreement made no mention of the husband’s income, though the wife said it was based on an imputed income to the husband of $120,000 and to the wife of $55,000. It also allowed for the amount of spousal support to be reviewed every five years.

A motion to change is filed

On April 19, 2017 the husband brought a motion to change the separation agreement. Specifically, he asked for the monthly amount to be reduced from $2,300 to $530 per month starting retroactively on June 1, 2016. He also asked for his arrears to be reduced starting on June 1, 2016. His arrears at the time of the trial were $31,105.

The wife responded to the motion, asking for the courts to dismiss it as well as obtain full financial disclosure from the husband.

Notices of withdrawal

The motions, affidavits, and financial statements of the parties were to be exchanged on June 20, 2017. The first case conference was scheduled for August of that same year, though the husband did not attend or file any materials. Instead, his lawyer served a Notice of Withdrawal since the parties were negotiating. This occurred again on November 23, 2017. The husband eventually decided to represent himself on November 17, 2017. He did not show for the final court appearance.

Seeking costs

The wife sought to recover costs from the husband. The court noted that the general discretion it has to award costs are laid out in the Courts of Justice Act and are as follows:

  • the costs of a case are in the discretion of the court;
  • the court may determine by whom costs shall be paid; and,
  •  the court may determine to what extent the costs shall be paid.
  • The court also pointed out the fundamental purposes of costs, which are:
  • (a)  to indemnify successful litigants for the cost of litigation;
  • (b) to encourage settlement; and
  • (c)  to discourage and sanction inappropriate behaviour by litigants.

The court then explained a number of other principles to following awarding costs, including that the successful party should be presumed to be entitled to costs, adding that factors such as the behaviour of the parties involved should also be considered. In fact, one of the purposes of awarding costs is to encourage changes in behaviour. The court wrote,

“Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned.  They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly, for the purposes of this case, oblivious to the mounting costs of the litigation.”

The court made a point to describe the behaviour of the husband, writing

“The husband brought a motion to change the separation agreement about two years after it was signed, and well before the five year period agreed to for a review of the amount of spousal support.  As well, he did not comply with the requirement in the separation agreement to follow the dispute resolution method agreed to (essentially, mandatory negotiations before a court case is started, using a mediator).  He abandoned the motion to change entirely, after the wife had hired a lawyer and prepared her responding materials.  He did not come to any of the court dates.  He withdrew his motion to change and then simply walked away from the court case, even though the wife had made claims.  The issue of restrictions on the husband’s right to bring future motions to change was raised at the case conference on 9 August 2017 and was part of the endorsement.  The wife’s request that his right to bring future motions to change be limited is a reasonable one.”

As a result of the husband’s behaviour, the court awarded the wife full costs.

If you have experienced a change in circumstances, or have found that an existing child custody or support agreement is no longer working in your best interests, the team at Gelman & Associates can review your situation and determine what types of changes should be sought. Our offices can be reached Monday to Friday from 8 AM to 8 PM. To schedule a brief consultation, call us at (844) 769-0737 or 1-844-769-0737, or contact us online.

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