Alex Finlayson

Appeal from three family arbitration awards arising from a long-term marriage involving equalization, exclusions for inherited and gifted property, ownership of gifted real property, post-separation adjustments, spousal support, and costs.

The court held that the arbitrator erred in law and made palpable and overriding errors in failing to exclude 99% of the balance in two investment accounts traceable to inheritance and gifts under s. 4(2) of the Family Law Act, and substituted a revised equalization result requiring the respondent spouse to pay the appellant spouse.

Although the court found the arbitrator's hearsay analysis concerning beach lot ownership was problematic, it held the hearsay was inadmissible under both the traditional and principled exceptions and upheld the result requiring payment for the share transfer.

The remaining property and unequal division grounds were dismissed, and the spousal support award was upheld in principle subject to limited further submissions on possible mathematical errors.

In a long-standing family law dispute, the court considered whether to appoint amicus curiae for the self-represented mother and whether to lift a sealing order on incomplete reports from the Office of the Children's Lawyer (OCL).

The court appointed amicus curiae to assist the mother and ensure an orderly trial, given the history of delays and the mother's difficulties in participating.

The court also lifted the sealing order, finding that the original premise for sealing the incomplete reports—that a comprehensive report would be prepared—had not materialized, and the sealed material contained relevant evidence for the upcoming trial.

The applicant wife brought a motion for the partition and sale of the matrimonial home and for temporary exclusive possession pending the sale.

The respondent husband brought a cross-motion for partial summary judgment to enforce an alleged pre-litigation settlement agreement for him to buy out the wife's interest.

The court found that the correspondence between counsel did not constitute a binding agreement, as essential terms regarding spousal support and equalization were not settled.

The court granted the wife's motion for partition and sale, finding no prejudice to the husband, but dismissed her request for temporary exclusive possession due to insufficient evidence.

In the midst of a family law trial, the respondent husband objected to the applicant wife's attempt to cross-examine him on police occurrence reports and title documents that had not been previously disclosed.

The court found that the wife's late production of these documents amounted to trial by ambush and created unfairness for the husband, violating the fundamental principle of early and complete disclosure in family law.

To remedy the unfairness, the court halted the cross-examination on the new documents and ordered a revised trial schedule, requiring the wife to testify first to establish the admissibility of the documents and allowing the husband an opportunity to review them and be properly examined.

The mother brought a motion to adjourn the family law trial for a year, citing a disability and arguing the court had a duty to accommodate her under human rights legislation.

The father opposed the lengthy adjournment and brought a motion to unseal an incomplete Office of the Children's Lawyer (OCL) report.

The court found the mother's medical evidence insufficient to justify a year-long adjournment and noted her failure to specify required accommodations.

However, the court adjourned the trial to the fall sittings due to overall lack of trial readiness.

The father's unsealing motion was adjourned, the mother's request for child counsel was dismissed, and the father's request for police enforcement of parenting time was dismissed without prejudice.

The mother brought a motion for the return of one of the parties' children, who was being overheld by the father, and for police enforcement.

The father brought a cross-motion seeking to change the parenting schedule, change the child's school, and appoint a private lawyer for the children.

The court found no material change or compelling circumstances to vary the existing final consent order on an interim basis.

The father was ordered to return the child immediately, failing which police enforcement would apply.

The court also appointed the Office of the Children's Lawyer to assist with the high-conflict dispute.

This is a costs decision following a motion and cross-motion regarding child access.

The father (Respondent) was largely successful in the underlying access motion, having his access reinstated despite the mother's (Applicant) allegations of abuse and unilateral suspension of access.

The court found the mother's conduct during the litigation to be highly unreasonable, including breaching prior orders, manipulating evidence (audio recordings, therapist involvement), and taking unreasonable positions.

The father was found entitled to costs, rejecting the mother's "divided success" argument.

While the father also engaged in some inappropriate behaviour (recording the child), it was deemed insignificant compared to the mother's conduct.

The court considered the mother's ability to pay, reducing the father's requested costs and allowing for installment payments, but adjusted the post-judgment interest rate to 5% to account for the father's interest charges on his legal fees.

The court declined to adjust section 7 expenses in lieu of costs due to insufficient evidence and improper pleading.

J.J., a young person, was found guilty of sexual assault with a weapon and being a party to sexual assault.

The court considered sentencing principles under the Youth Criminal Justice Act (YCJA), including the diminished moral blameworthiness of young persons and the goal of rehabilitation.

Despite J.J. turning 20 and thus serving any custodial sentence in an adult facility, which presented challenges for programming and rehabilitation, the court imposed a 12-month custody and supervision order followed by 12 months of probation.

The court emphasized that the adult facility must adhere to YCJA principles and set a future sentence review date to monitor J.J.'s rehabilitation progress, acknowledging the potential for collateral consequences due to adult incarceration and the COVID-19 pandemic.

The applicant grandmother brought a motion for temporary access to her 11-year-old non-biological granddaughter.

The respondent mother had arbitrarily terminated the grandmother's access after a dispute over the choice of the child's godmother, despite the grandmother having had regular access for nine years.

A Voice of the Child Report indicated the child had a positive relationship with the grandmother and wished to resume contact.

Applying the test for grandparent access, the court found the mother's decision to terminate access was arbitrary and imperilled a positive relationship.

The court granted the grandmother's motion and ordered a graduated schedule of temporary access.

The father, U.K., brought an application under the Hague Convention for the return of the child, A.K., to Sugar Land, Texas, alleging wrongful removal or retention by the mother, N.A. The mother opposed, arguing the Hague Convention did not apply or, alternatively, that exceptions under Articles 12, 13(a), and 13(b) applied.

The court found that the child's habitual residence was Texas and that the removal was wrongful.

However, the court granted all three of the mother's exceptions: the father's subsequent acquiescence (particularly due to his withdrawal of the mother's green card application), grave risk of psychological harm or intolerable situation if the child were returned without the primary caregiver mother (due to her immigration status), and the child being settled in.

Consequently, the father's Hague Convention application was dismissed, and the Ontario Court of Justice assumed jurisdiction over the substantive custody and access issues.

The Crown brought an application before the Ontario Court of Justice seeking an order to compel two lawyers to disclose confidential and/or privileged information related to a deceased complainant, for use in a criminal prosecution under the Youth Criminal Justice Act.

The lawyers had refused to provide statements without a court order, citing the Law Society of Ontario's Rules of Professional Conduct.

The court dismissed the Crown's application, holding that the Ontario Court of Justice lacked the express or implied jurisdiction to grant such an order, which was deemed to be in the nature of declaratory relief.

The court emphasized that its jurisdiction is limited to the criminal proceeding itself and does not extend to pre-trial investigative orders concerning non-parties, a function reserved for the Superior Court.

Following a successful summary judgment motion, the respondent father sought costs.

The applicant mother opposed and sought her own costs, despite filing excessively voluminous materials and advancing meritless claims.

The court awarded the father $15,000 in costs, finding the mother's behaviour unreasonable and disproportionate.

The court further held that it had jurisdiction under section 111 of the Courts of Justice Act to set off the costs award against $5,563.37 in child support arrears owed by the father, as the arrears constituted a 'debt'.

The set off was ordered, leaving a net costs amount of $9,436.63 owing to the father.

The father brought a motion to change a 2016 joint custody order, initially seeking decision-making authority over the child's education, but later amending to seek sole custody and primary residence.

The mother opposed the motion and sought to reinstate an earlier 2013 order granting her sole custody.

The court found material changes in circumstances, including the mother's refusal to allow the child to participate in school activities, increasingly disturbing allegations by the mother (including unfounded claims of poisoning), the mother's refusal to cooperate with the Children's Lawyer, and evidence of the child's deteriorating mental health and distress.

The court granted the father sole custody with access to the mother in the father's discretion, ordered counselling for the child, and directed the Children's Aid Society to support the father in managing access and considering supervised access if necessary.

A young person was found guilty of aggravated assault following a trial.

The Crown sought a 9-month custody and supervision order followed by 14 months of probation.

The defence sought a non-custodial sentence, arguing that the accused's 914 days of pre-trial house arrest should be credited as equivalent to the proposed custodial sentence.

The court imposed a 24-month probation order with conditions including 50 hours of community service, a 5-year weapons prohibition, and a DNA order, finding that a non-custodial sentence was appropriate given the accused's vulnerability, mental health difficulties, compliance during house arrest, and the lengthy period already spent under restrictive bail conditions.

A young person was charged with ten firearms offences arising from live-streamed videos on Instagram on August 31, 2019.

The Crown proceeded on three counts: possession of a restricted firearm without a license (s. 91), careless use of a firearm (s. 86), and pointing a firearm (s. 88).

The court admitted edited police recordings of the live streams but rejected the detective's recognition evidence due to credibility concerns regarding a bail compliance check.

The court found the accused's identity on the videos through independent review but could not establish possession of the firearm beyond a reasonable doubt.

The Crown failed to prove the accused was at the location where the videos were filmed and could not establish that the object briefly held by the accused was the same firearm seized the next day.

The court acquitted on all three counts.

This is a costs decision arising from a motion heard on August 28, 2020, in which the father sought decision-making authority over vaccination of the parties' child, cessation of day care attendance, a change from private to public school, and a modified parenting schedule.

The parties settled the school issue and certain other matters.

The father succeeded on the vaccination issue but failed on the day care issue.

The court found divided but unequal victory, with the father achieving greater success on the more complex and time-consuming vaccine issue.

The court awarded costs to the father in the reduced amount of $3,000.00 inclusive of HST and disbursements, taking into account the divided victory and applying principles of reasonableness and proportionality.

The applicant mother brought a motion to change child support for the parties' 11-year-old son, seeking to impute income to the father in excess of $100,000 and requesting retroactive support dating back to 2013.

The respondent father brought a cross-motion for summary judgment.

The court granted summary judgment, finding that the mother's allegations of hidden income and lifestyle-based imputing were unfounded.

The father's income was determined based on his Line 150 tax returns with a modest addition from a personal injury settlement received in 2017.

The court dismissed the mother's disclosure motion and found that no additional disclosure was required.

The court also imposed restrictions on the mother's future access to the court due to her abusive litigation conduct and disproportionate claims.

The respondent mother filed a 14B Motion seeking a temporary stay of the court's September 28, 2020 order granting the applicant father decision-making authority over the child's vaccination decisions.

The motion was dismissed on three grounds: (1) the motion was opposed and not appropriate for 14B procedure; (2) there was no urgency or pressing need, as the mother delayed filing the appeal and did not pursue an earlier hearing date in the Superior Court; and (3) insufficient evidence was provided to satisfy the stay test.

The court found that the mother should pursue her stay motion in the Superior Court as scheduled for November 24, 2020.

A father brought a motion seeking decision-making authority over his almost 10-year-old son's vaccinations, requesting the child not return to private school and day care, and seeking an equal time-sharing arrangement.

The mother opposed all three requests.

The court granted the father decision-making authority over the child's publicly funded vaccinations, finding it in the child's best interests based on the child's good health, expert medical evidence, and the mother's failure to provide any credible medical evidence supporting her position.

The court dismissed the father's requests regarding day care and deferred the parenting schedule issue to trial.

The court applied a best interests test rather than requiring the father to demonstrate material change in circumstances or exigent circumstances.

The applicant mother unilaterally suspended the respondent father's in-person access to their four-year-old daughter in March 2020, alleging that the father and his partner were physically and emotionally abusing the child.

The father brought a motion to reinstate his access.

The court found that while there had been a material change in circumstances, the allegations of abuse were not established on the evidence.

The court found the mother's extensive recordings of the child, the child's statements, and photographs of bruises to be of limited probative value and highly prejudicial.

The court reinstated the father's access substantially as ordered in the prior trial judgment, with additional terms prohibiting recording and directing further assessment of the child's behavioral and health needs.