Family and Matrimonial Law

This decision addresses the imputation of income for child support purposes where the father was found intentionally underemployed and failed to provide full financial disclosure, including income from a professional corporation and rental properties.

The court imputed income to the father based on his earning capacity, rental income, and corporate benefits, rejecting his lower reported income and job search claims.

The mother’s income was accepted as disclosed.

The court also considered the appropriate sharing of special and extraordinary expenses under section 7 of the Child Support Guidelines and declined to order life insurance as security due to lack of evidence but ordered a charge on the father’s Ontario properties to secure support obligations given his relocation to Jamaica and non-compliance history.

The Applicant sought to strike the Respondent's pleadings due to his persistent non-compliance with financial disclosure orders and rules, and the Respondent sought the sale of the matrimonial home.

The court found the Respondent engaged in intentional delay tactics and provided unreliable financial information.

While declining to immediately strike pleadings due to the child's interests and the imminence of trial, the court imposed a $10,000 penalty on the Respondent, with daily fines for late payment, and ordered that his pleadings on financial issues would be struck if he failed to comply within 45 days.

The Respondent was also barred from using his expert's reports without consent and from bringing further motions without leave.

The Respondent's motion for the sale of the matrimonial home was dismissed due to his unreliable financial claims, the imminence of trial, and potential prejudice to the Applicant and child.

The Applicant mother initiated a motion to change a consent Final Order regarding decision-making responsibility, parenting time, and child support for their child, M. The court found a material change in circumstances due to the Respondent father's non-compliance with communication orders, abusive communication, and frustration of the Parenting Coordinator process.

The court granted the Mother sole decision-making responsibility (with a positive onus to consult), adjusted the parenting schedule to reduce the Father's weeknight overnights while extending one weekend per month, and ordered the Father to pay monthly child support and a proportionate share of s. 7 expenses with an annual cap.

The court declined to find parental alienation.

The respondent husband, M.D., brought a motion for summary judgment to enforce an alleged settlement agreement in a family law proceeding, which the applicant wife, N.C., disputed.

The court examined whether a binding agreement had been reached, specifically focusing on two essential terms: an indemnity clause and a $350,000 credit clause.

The court found that there was no genuine issue requiring a trial on the question of whether a binding deal existed, concluding that there was no meeting of the minds on all essential terms from the perspective of a reasonable observer.

Consequently, the husband's motion for summary judgment was dismissed.

The respondent, L.R., brought a motion to admit fresh evidence at trial and to suspend the applicant, P.G.'s, parenting time, following P.G.'s breach of a consent order by removing a child from L.R.'s care.

The court granted the motion to admit fresh evidence, applying the four-part test from R. v. Palmer.

Despite finding P.G. in breach of the order, the court declined to suspend P.G.'s parenting time, reasoning that there was no immediate threat to the child's well-being, the summer parenting schedule would soon commence, and a final decision on parenting time was imminent at trial.

The court ordered P.G. to return the child to L.R.'s care by a specific date and for parenting time to resume according to the existing summer schedule, emphasizing parental encouragement for parenting time.

This was a temporary order pending final trial submissions.

The respondent husband brought a motion seeking a declaration that the Ontario Superior Court of Justice, Family Division, lacked jurisdiction to set aside a Consent Final Order issued by the New Brunswick Court of Queen’s Bench.

The applicant wife had commenced an application in Ontario to set aside the New Brunswick order, alleging fraud and misrepresentation by the respondent regarding his retirement status, which impacted spousal support waiver and pension division.

The court determined that an Ontario court does not possess the inherent or statutory jurisdiction to set aside a final order from another province, particularly when the original order was based solely on provincial legislation and not the Divorce Act.

The court noted that while interjurisdictional support orders have specific statutory mechanisms (e.g., ISOA), these do not extend to setting aside the original order itself.

The respondent's motion was granted, and the applicant's underlying application was dismissed.

This was an uncontested trial where the applicant sought sole decision-making responsibility for their child, primary residence, ongoing and retroactive child support, and a divorce.

The respondent did not file an answer or appear.

The court granted the applicant sole decision-making authority, ordered the child to reside primarily with the applicant, imputed an income of $22,500 to the respondent for child support calculations, ordered ongoing child support of $197 per month, and retroactive child support of $3,152.

The divorce was also granted, with the court confirming reasonable arrangements for child support were in place.

This endorsement addresses the costs arising from a motion concerning COVID vaccination for children, which was dismissed in favor of the mother (respondent).

The father (applicant) had sought to vaccinate the children, while the mother successfully argued for deferral based on children's opposition and ongoing concerns.

The mother, largely self-represented, sought costs, while the father argued for nominal costs despite having previously threatened significant costs.

The court found the mother's litigation approach reasonable and the father's introduction of irrelevant issues (mother's political beliefs) unreasonable.

Applying the principles of costs, including indemnification, settlement encouragement, and discouraging inappropriate behavior, the court awarded the mother fixed costs of $1,300.00.

The Applicant Mother sought interim child and spousal support from the Respondent Father.

The Father consented to child support but disputed spousal support, arguing for no payment and the imputation of income to the Mother due to alleged underemployment and underutilization of capital assets (equalization payment and family farm).

The court found that entitlement to spousal support had already been established by a previous order.

The court declined to impute employment income to the Mother, considering her long absence from the workforce, her role in caring for a special needs child, and her partial blindness.

It also declined to impute income from capital assets, citing unsettled valuations and unclear income-earning potential.

The Father's motion for a variation to pay no interim spousal support was dismissed.

The court awarded the Mother interim spousal support of $2,900 per month from September 1, 2019, and set specific interim child support amounts.

This decision details the findings from the first portion of a bifurcated trial in divorce proceedings, primarily addressing the valuation of farm properties and farm equipment.

The court also considered the applicant's motion for partition and sale of jointly owned properties.

The judgment provides detailed analysis of expert appraisal methodologies, including fair market value, depreciation, comparable sales, and the influence of factors like drainage and solar panels on property values.

The court made specific findings on the values of seven farm properties and various pieces of equipment as of the marriage, separation, and trial dates.

The decision on the motion for partition and sale was reserved, pending further submissions from the parties regarding the impact of a recent case.

The Respondent father sought a contact order for his two sons after a temporary no-contact order was issued due to serious sexual assault allegations made by the Applicant mother's 15-year-old daughter against him, which were verified by Simcoe Muskoka Child, Youth and Family Services.

The court dismissed the father's motion for contact, emphasizing that the best interests of all three children, including the alleged victim, were paramount.

The court highlighted the importance of a risk assessment, which the father refused to undergo, and distinguished prior case law based on recent amendments to the Children's Law Reform Act concerning family violence.

The respondent father sought an urgent order for the resumption of parenting time for the parties' 12-year-old child, Porter, after the applicant mother unilaterally withheld access citing COVID-19 concerns.

The court, applying principles from Ribeiro v. Wright, affirmed the presumption of maintaining existing parenting arrangements.

While the mother's initial COVID-19 concerns were addressed, her subsequent arguments based on the child's preferences, anxiety, and asthma were deemed non-urgent and lacking specific evidence.

The court ordered the immediate resumption of the father's parenting time with a minor schedule adjustment, but denied requests for make-up time and a police enforcement clause.

On appeal from a trial decision regarding custody and access of a six-year-old child, the Court of Appeal found that the trial judge erred by failing to apply the "maximum contact" principle under section 16(10) of the Divorce Act.

The trial judge had ordered that the child's primary residence remain with the mother, with the father receiving only one overnight per week and alternating weekends, and had granted joint custody in name only by giving the mother ultimate decision-making authority.

The Court of Appeal allowed the appeal and set aside the orders respecting parenting time and decision-making, requiring the parties to provide written submissions on the allocation of parenting time and decision-making responsibilities in a parallel parenting model.

Motion to change a final order regarding access and child support for a child born in 2008.

The mother sought to modify the access schedule and obtain permission to travel with the child.

The father sought direct access to the child's service providers.

At trial, the parties reached agreement on all parenting and access issues on consent.

The trial proceeded on child support variation only.

The court found a material change in circumstances warranting variation: the parenting time no longer qualified as shared parenting under the Guidelines, the father's income had increased significantly since 2014, and section 7 expenses were now claimed.

The court declined to award retroactive support due to the mother's delay in raising the issue, but varied support prospectively from January 1, 2019.

The court also made detailed orders regarding access, travel, communication, and counselling.

This appeal concerned the trial judge's decision to appoint two amici curiae in a highly contentious and complex family law trial involving interjurisdictional issues.

The applicant mother was self-represented and exhibited emotional instability, while the respondent father's counsel was removed due to lack of funds.

The Attorney General of Ontario, as intervenor, moved to set aside the amici orders, arguing they constituted a de facto appointment of state-funded counsel.

The trial judge dismissed that motion, and this court upheld that decision.

The court found the appointment of amici was essential for the judge to discharge judicial functions, stabilize proceedings, and ensure a fair trial, consistent with established legal principles.

The amici's roles were distinct from traditional counsel, as they could not be dismissed by the parties and were not obligated to follow their instructions, primarily serving the court's needs.

The respondent, Du Won Kim, brought a motion to stay a default proceeding initiated by the Director, Family Responsibility Office (FRO), and to prohibit further enforcement measures.

Mr. Kim alleged that Manulife Financial misdirected approximately $67,871.00 in bonus payments, which should have gone to the FRO for support arrears, to the Clerk of the Superior Court of Justice for other liabilities.

He sought an order for Manulife to pay the FRO or for the funds to be retroactively applied to his support arrears.

The court dismissed the motion, finding that the issues regarding Manulife's compliance with Support Deduction Notices should be addressed in the Superior Court of Justice in Brampton, where the original support order was made, within the context of Mr. Kim's Motion to Change Final Order, and not in the current default proceeding.

The court also noted serious notice problems as Manulife and the support recipient were not properly notified.

The respondent brought a motion to change a child support order dated September 22, 2008, seeking to reduce his monthly child support obligation from $211.00 to $100.00 or eliminate it entirely, claiming unemployment and inability to work due to age and arthritis.

The applicant opposed the motion and brought a cross-claim seeking to increase child support retroactively to January 2010, arguing the respondent had undisclosed income based on his ability to finance a $400,000 home and $15,000 vehicle.

The court found the respondent's evidence regarding his financial circumstances to be untrustworthy and determined that income should be imputed to him at $41,913.00 annually.

The court varied the order to increase child support to $378.00 per month retroactive to August 1, 2013, and ordered payment of arrears at $150.00 per month.

Mr. Brown applied to vary child support and vacate arrears under the Interjurisdictional Support Orders Act, 2002.

Ms. Navas cross-applied to recalculate support and arrears.

The court found Mr. Brown was entitled to a 50% reduction of arrears accumulated between February 2013 and January 2015 due to enforcement issues, but dismissed his undue hardship claim.

The court granted Ms. Navas's request to recalculate child support from February 2015 onwards based on Mr. Brown's actual income, dismissing her request for earlier retroactive recalculation.

The Children's Aid Society moved to strike a parent's answer in status review applications for her two children under Rule 1(8.2) of the Family Law Rules.

The parent had ceased participation in the children's lives and the court process, having moved to another province and expressed a degree of agreement with the Society's plans for permanency.

The court granted the motion, finding that the parent's answers would further delay the proceedings and that striking them was a proportionate and fair way to achieve permanency for the children, balancing the parent's prejudice against the children's need for timely resolution.

Application to vary an existing custody order and two amending agreements concerning a child born August 19, 2009.

The father sought to vary the joint custody arrangement to sole custody in his favour, citing material changes in circumstances including the mother's unstable lifestyle, multiple relocations, marijuana use, and inconsistent involvement with the child.

The court found material change in circumstances and granted sole custody to the father with access to the mother.