Family and Matrimonial Law

In a family law matter involving a 42-year marriage, the applicant husband brought a motion for partition and sale of two jointly owned matrimonial properties in Toronto.

The respondent wife opposed the motion, arguing that granting it would prejudice her family law rights, particularly her claim for exclusive possession, and that the husband's incomplete financial disclosure regarding alleged foreign assets in India warranted delaying the sale.

The wife also raised concerns about her vulnerability as a senior citizen with health challenges and limited income.

The court granted the husband's motion for partition and sale, finding that the wife failed to meet her onus of establishing sufficient reason to refuse the sale.

The court also dismissed the wife's separate motion for financial disclosure without prejudice, finding it was improperly brought on the same motion day as the partition motion.

The Office of the Children's Lawyer brought a summary judgment motion on behalf of Kenny Cheng, a minor child whose parents died in a car accident in China in 2011.

The paternal grandparents sought custody and access to Kenny, while the maternal grandmother sought sole custody.

The court granted the summary judgment motion, awarding sole custody to the maternal grandmother, finding no genuine issue requiring trial.

The court found that the maternal grandmother had been Kenny's sole caregiver since his parents' death, that Kenny had a close relationship with her, and that he consistently expressed his preference to reside with her and not have contact with his paternal grandparents.

The court also found that the paternal grandparents' allegations against the maternal grandmother were largely unsubstantiated and that access should be left to Kenny's discretion.

The appellant claimed an interest in the increase in equity in the respondent's home during their cohabitation, seeking a share of a $410,000 increase.

The trial judge dismissed the action and awarded costs to the respondent.

On appeal, the court allowed the appeal in part, awarding the appellant $5,000 plus interest, representing a one-time mortgage contribution.

The appeal addressed primarily a constructive trust claim, on which the respondent was successful on the main issue.

Following several complex family law motions concerning support issues, the court was required to determine the appropriate costs award.

The applicant sought $45,000 plus additional preparation costs, asserting complete success and unreasonable conduct by the respondent.

The respondent argued the applicant achieved only partial success and that significant reductions to child and spousal support constituted substantial success for him.

Applying the flexible approach to costs under r. 24 of the Family Law Rules and emphasizing proportionality and reasonable expectations, the court found the applicant was mostly successful but that the amount claimed was excessive.

The court awarded $15,000 inclusive of disbursements and HST, enforceable through the Family Responsibility Office as expenses related to support.

Following a family law trial addressing child support, spousal support, and equalization of net family property, the court considered costs submissions after the release of the judgment.

Success on the substantive issues was divided, but the court found the respondent had failed to provide adequate financial disclosure and evidence necessary to properly litigate the equalization issues.

The court accepted that the respondent was self‑represented and receiving Ontario Works, but determined that some costs should nonetheless be awarded.

The applicant’s claimed legal fees and disbursements were substantially reduced.

Partial indemnity costs were awarded in light of the respondent’s disclosure failures and the mixed success on the substantive issues.

Following a family law trial in which the mother obtained sole custody and primary residence of the child, the applicant sought costs of $10,000.

The court considered Rule 18 of the Family Law Rules and the parties’ conduct throughout the litigation.

The evidence demonstrated that the respondent’s inflexibility and litigation posture necessitated the trial and compelled the applicant to retain counsel.

The court found the applicant had been successful and that the claimed costs were reasonable in the circumstances.

The respondent was ordered to pay the applicant $10,000 in costs forthwith.

A family law dispute involving custody, child support, spousal support, and property issues following the breakdown of a short cohabiting relationship.

The court determined that the parties should have joint custody of the child born of their relationship, with primary residence with the mother and defined parenting time for the father.

The court found the father had stood in the place of a parent to two of the mother’s other children and ordered limited child support for them for a fixed period.

The mother was denied spousal support due to the short relationship and her voluntary unemployment, with income imputed to her.

The court declined to order the sale of the jointly owned home under the Partition Act and allowed the mother an opportunity to purchase the father’s 5% interest.

The father brought a motion to change a final family law order seeking to reduce child support to reflect his current income, terminate spousal support, and compel the immediate sale of the matrimonial home.

The court considered whether a material change in circumstances had occurred since the original order, which had imputed income to the father and granted the mother exclusive possession of the home for a fixed period.

The court found that the father had not demonstrated reasonable efforts to obtain higher‑paying employment in his field and had failed to establish any material change in circumstances.

The court also found no basis to vary the order granting exclusive possession of the matrimonial home under the Family Law Act.

The motion to change was dismissed.

Following a family law motion concerning custody and parenting arrangements, the court addressed costs after dismissing the mother’s motion for sole custody and ordering joint custody with a parenting schedule proposed by the father.

The court found the motion was ill‑advised and unsupported by evidence that a change to the parties’ existing parenting arrangement was in the children’s best interests.

The father sought more than $30,000 in costs, reduced by $5,000 for limited success on minor issues.

The court accepted that the fees were incurred but declined to award full recovery, instead granting two‑thirds of the claimed costs.

The court also criticized the responding party’s costs submissions for improperly repeating arguments rejected on the motion.

The applicant father sought to vary a prior custody order under s. 17 of the Divorce Act to obtain sole custody of the parties’ child, relying heavily on an Office of the Children’s Lawyer report recommending a transfer of custody.

The court found the OCL report unreliable because key witnesses were not properly interviewed with interpreters and relevant medical and daycare information was not considered.

Evidence showed the child was thriving in the respondent mother’s care and that allegations of medical neglect and safety concerns involving the mother’s friend were unsupported by the evidence and prior investigations.

The court also found the father not credible and concluded that no material change in circumstances had been established within the meaning of s. 17(5) of the Divorce Act.

Even if a material change had been proven, transferring custody would not have been in the child’s best interests.

The applicant brought a fourth motion seeking to have the respondent found in contempt for allegedly breaching a prior order restricting him from receiving income or benefits from his corporation while in default of spousal support obligations.

The respondent was significantly in arrears and had previously been found in contempt related to enforcement of support and security obligations.

The applicant argued that the respondent violated the order by receiving corporate-paid benefits including a vehicle, cell phone, and insurance coverage.

The court held that these items were legitimate business expenses necessary for the operation of the respondent’s real estate business and did not constitute prohibited benefits within the meaning of the earlier order.

The motion for contempt was dismissed and costs were reserved to the judge hearing the ongoing motion to change support.

Following a family law motion concerning the matrimonial home, child support, and a parenting coordination agreement, the court addressed costs.

The respondent on the motion argued he was the successful party and sought full indemnity costs based on an offer to settle and alleged bad faith by the other party.

The court found that neither party’s offer complied with the strict requirements of Rule 18(14) of the Family Law Rules and therefore full indemnity costs were not mandatory.

However, the court determined the respondent was largely successful on the dominant issue and that the applicant had engaged in unreasonable conduct by listing and negotiating the sale of the matrimonial home without meaningful involvement from the other party.

Considering hardship but maintaining the principle that costs follow the event, the court awarded partial indemnity costs.

A self‑represented spouse sought spousal support and a proprietary interest in a home following the breakdown of a marriage.

The property was legally owned by the respondent brother‑in‑law, though the spouse and her husband had contributed labour and funds while living there under the belief that the husband would eventually acquire it.

The court rejected claims that the husband owned the property or that the brother held title in trust, but found the owner had been unjustly enriched by the applicant’s contributions.

Applying the principles from Kerr v. Baranow, the court awarded a monetary remedy reflecting half of the mortgage principal reduction and a share of the property’s value increase.

Limited retroactive spousal support was also ordered against the husband.

The plaintiff alleged that a religious divorce certificate and related registry entry were fraudulently altered after execution to insert a waiver of her contractual entitlement to a marriage gift contained in a marriage contract.

She sought declarations invalidating the waiver and damages exceeding $2 million.

After an eight‑day trial, the court rejected the allegation of fraud, finding on a balance of probabilities that the waiver of the marriage gift was present in the documents when signed and that the plaintiff’s subsequent conduct was inconsistent with her claim of later alteration.

The court also held that, even if fraud had been proven, the action would have been barred by applicable limitation periods under the Limitations Act, 2002.

The action was dismissed.

The applicant spouse brought a motion seeking interim spousal support, a substantial advance on equalization, interpretation of a prior order regarding dividend payments, and a finding that the respondent breached an earlier court order.

The court applied the test for advances on equalization and held that the applicant failed to demonstrate both a reasonable need for additional funds and a minimum equalization entitlement capable of supporting the requested advance.

The court imputed the respondent’s income at $463,000 and ordered interim spousal support of $20,000 per month retroactive to separation.

The court also interpreted a prior order requiring continuation of historical payments to include a $4,000 monthly dividend payment and ordered arrears to be paid, but declined to impose penalties for breach.

The respondent father brought a motion to vary an existing child support order on the basis that the adult child of the marriage, who suffered from schizophrenia and was unable to work, had begun receiving benefits under the Ontario Disability Support Program Act, 1997.

The father argued that the ODSP payments should be deducted from his child support obligations retroactively.

The court held that the presumptive approach under s. 3(2)(a) of the Federal Child Support Guidelines applies to adult children unless applying the Guidelines is inappropriate.

ODSP benefits belong to the adult child and do not belong to the recipient parent, and their existence did not render the standard Guidelines approach inappropriate.

The court therefore refused to deduct ODSP benefits from child support and dismissed the motion to vary.

Following a lengthy family law trial involving issues of spousal support, child support, alienation, counselling orders, and other relief, the court determined costs between the parties.

The court applied Rule 24 of the Family Law Rules, emphasizing that success is the primary factor in determining costs, but that unreasonable behaviour and settlement offers may also influence the outcome.

Although success was divided across most issues, the applicant was clearly successful on the significant issue of parental alienation, resulting in a monetary penalty against the respondent.

Settlement offers exchanged before trial were considered but neither party achieved a result as favourable as their offers.

The court awarded the applicant partial costs attributable primarily to the alienation issue.

The court determined costs following a family law motion concerning the interpretation of a consent divorce order dealing with division of a pension.

The moving party successfully argued that the order required the respondent’s pension to be divided on a “delinked” basis rather than a “linked” basis.

Applying Rule 24 of the Family Law Rules and s. 131(1) of the Courts of Justice Act, the court reaffirmed that the successful party is presumptively entitled to costs, subject to considerations of reasonableness and proportionality.

Although the successful party claimed over $18,000 in costs and more than 80 hours of lawyer time, the court found that amount excessive for the circumstances.

The court fixed costs at $12,500 inclusive of disbursements and HST as a fair and reasonable award.

The moving party brought a motion for interim relief within a motion to change a final order, seeking an increase in spousal support from $590 per month to approximately $1,500 per month pending determination of the variation application.

The moving party, suffering from advanced Parkinson’s disease and unable to work, argued that the responding party’s increased income and his ongoing need justified an interim increase.

The court reviewed the governing principles for interim variation of final support orders, including the requirement to establish a prima facie case for variation together with hardship or urgency.

Although the responding party’s income had increased modestly, the court found no evidence of increased expenses or uncovered medical costs and concluded that the threshold test was not met.

The motion for interim variation was therefore dismissed.

The respondent sought retroactive child support, daycare expenses, medical costs, and extraordinary expenses for a child following a prior consent order requiring child support and cost sharing.

Applying the principles from S. (D.B.) v. G. (S.R), the court determined that effective notice of a support claim occurred in 2010 and limited retroactive child support to three years prior.

The court found that the payor parent had failed to comply with portions of the earlier order but also considered delay in enforcement and the parties’ financial circumstances.

Retroactive child support arrears with interest, certain daycare expenses, and some section 7 extraordinary expenses were awarded, while claims for medical expenses were dismissed due to insufficient proof.