Family and Matrimonial Law

This decision addresses a high-conflict family law matter involving parenting time, decision-making authority, and financial issues following the separation of S.M. (applicant) and N.E. (respondent).

The court reviews the respondent's repeated non-compliance with court orders, her failure to participate in proceedings, and the resulting orders for an undefended trial on financial issues.

The court ultimately denies the respondent's motion to set aside the undefended trial, grants the applicant sole decision-making authority for the child, and sets out detailed orders regarding child support, the matrimonial home, and costs.

The Ontario Court of Justice dismissed a 14B motion brought by Laura Elizabeth Clark seeking urgent orders for primary residence of the child with police enforcement in Fergus, Ontario.

The motion was short served and not on consent, and the court emphasized the importance of jurisdictional propriety, noting an existing temporary order from Thunder Bay.

The court held that only the original court can transfer jurisdiction under section 66 of the Children's Law Reform Act and that the issue of jurisdiction should be addressed in Thunder Bay where the initial application was made.

The decision highlights procedural requirements for urgent motions and the necessity to respect existing court orders and jurisdictional boundaries in family law disputes.

This decision addresses outstanding issues following a contentious family law trial, specifically concerning child support calculation, parenting orders, and costs.

The court dismissed the applicant's attempt to re-litigate the child support offset calculation and section 7 expenses, finding no arithmetical errors and no new evidence.

It clarified parenting orders, incorporating some of the parties' agreed-upon terms and making mutual orders for activity attendance.

On costs, the court found the applicant was more successful on the critical issues of material change and sole decision-making authority, despite her offer to settle not meeting the Rule 18 criteria for substantial indemnity.

Considering the divided success and the unreasonable conduct of both parties, the court awarded the applicant partial indemnity costs of $40,000.00, inclusive of HST and disbursements, payable within twelve months.

The applicant father, a civil litigation lawyer with no family law experience, sought to adjourn his family court trial to retain new counsel after his previous lawyer was removed from the record.

The respondent mother opposed a lengthy adjournment, emphasizing the need for timely resolution, particularly concerning the child's proposed relocation to Ireland and the upcoming school year.

The court granted a shorter adjournment than requested by the father, rescheduling the trial to June 2024, making it peremptory on the father, and conditionally delaying the sale of the matrimonial home to align with the new trial date, balancing the father's need for representation with the child's best interests and the mother's right to timely resolution.

This Status Review proceeding involved a motion by the Durham Children's Aid Society and the father (S.M.) to permit the father to relocate with his 3-year-old child (A.M.) from Ontario to New Brunswick.

The kin caregiver (C.C.) opposed the relocation and sought temporary care and custody of A.M. in Ontario.

The court found the father's unilateral departure from Ontario with the child improper and questioned his credibility, compliance with orders, and willingness to facilitate the child's relationship with the kin caregiver, especially in light of an outstanding criminal warrant for an alleged assault in A.M.'s presence.

The court also noted the Society's incomplete assessment and lack of a detailed interjurisdictional access plan.

Applying the Child, Youth and Family Services Act, 2017 (CYFSA) and relocation principles, the court dismissed the Society's and father's motions, ordering A.M. to remain in C.C.'s temporary care and custody in Ontario.

The applicant sought to bring a motion to change a final order concerning a high-conflict family matter, specifically regarding reunification therapy for the child, N.L. The motion was dismissed due to lack of proper service on the respondent.

The court emphasized the critical importance of the child's emotional well-being and the need for the parties to cooperate with therapeutic recommendations, noting that the previous reunification therapy was cancelled due to alleged interference.

The court also clarified its ongoing jurisdiction over contempt and change motions in this case.

This endorsement addresses the issue of costs following a motion where the Applicant father sought 37 heads of relief against the Respondent mother.

The court had previously granted the father's motion in part, finding the mother in breach of a prior order and granting some make-up time, while dismissing other requests.

Both parties sought costs on different indemnity bases.

Applying the modern law on costs, the court found that success was fairly evenly divided between the parties.

Despite offers to settle from both sides, neither met the criteria under Rule 18(14) or significantly influenced the decision under Rule 18(16) of the Family Law Rules.

Consequently, the court ordered that there would be no costs awarded to either side, with each party bearing their own expenses.

The Mother brought a motion to compel the Father to undergo a psychiatric risk assessment as recommended by the court-appointed assessor.

The Father cross-moved to adjourn the motion pending disclosure and to appoint a different assessor for both parties.

The court found the assessor had the authority to direct the risk assessment but agreed with the Father's objection to the specific psychiatrist due to a potential conflict of interest.

The court also ordered both parties to complete disclosure before the assessment continued.

The Respondent brought a motion to cite the Applicant for contempt of prior access orders concerning their 8-year-old daughter, and subsequently moved for directions to set a trial date for the contempt motion and enforce interim orders.

The court noted significant issues with the child's relationship with the Respondent, stemming from the Respondent's comportment, and the child's forceful refusal of contact.

The judge found the Respondent's tone imperious and his credibility reduced, concluding that the child's problems were complex and unlikely to be resolved by a contempt trial, with negligible chances of proving deliberate breach by the Applicant.

The motion for directions was dismissed without costs, and the contempt motion was adjourned for trial, with a recommendation for reconciliation counselling or a motion to change.

This trial addressed the applicant's request for income imputation, ongoing and retroactive child support, and Section 7 expenses.

The court imputed an annual income of $73,000 to the respondent, finding he was intentionally underemployed and that his underemployment was unreasonable.

Consequently, the court awarded ongoing and retroactive guideline child support.

While retroactive Section 7 expenses for the children's dance activities were awarded, the respondent's share was reduced due to the unreasonableness of the high costs not contemplated in the original separation agreement, and future contributions were capped.

The proportionate shares for ongoing Section 7 expenses were also adjusted.

This decision addresses a motion by the biological great aunt of a child to be added as a party in a custody application initiated by a non-biological caregiver.

The child's father is deceased, and the mother has disappeared.

The court considered the discretion to add parties under Rule 7(5) of the Family Law Rules, applying criteria from relevant case law, including the child's best interests, potential for delay, necessity, and the proposed party's plan.

Finding the circumstances unusual and that all relevant information was necessary for a just determination of the child's best interests, the court granted the great aunt's motion to be added as a party.

In this family law motion, the applicant sought exclusive possession and sale of the matrimonial home, sale of other properties, temporary spousal and child support, and to strike the respondent's pleadings.

The respondent cross-moved for exclusive possession, leave to claim a constructive trust, sale of one property, and support orders.

The court granted the applicant temporary exclusive possession of the matrimonial home and ordered its sale, finding the respondent unreasonably withheld consent.

The court imputed an income of $82,000 to the respondent for temporary spousal and child support purposes.

The applicant's request to strike pleadings was denied, but the respondent was ordered to provide full financial disclosure.

The respondent was granted leave to amend his pleadings to claim a constructive trust.

This application concerned a dispute over financial disclosure in an ongoing arbitration for child support.

The applicant sought an order compelling the respondent and 31 corporate entities in which he held an interest to produce financial disclosure as per a consent arbitration award.

The respondent cross-applied to be released from the arbitration or to remove the arbitrator due to alleged bias and unfair procedure.

The court dismissed the respondent's requests, finding no grounds for bias or release from arbitration, and granted the applicant's request for disclosure from all respondents, emphasizing the importance of full disclosure in family law matters and the children's entitlement to support.

The court determined whether three children are Indian or native persons under the Child and Family Services Act.

The children's aid society argued the children were neither Indian nor native, while the mother sought a declaration that they were Indian with the Mohawks of the Bay of Quinte as their band.

The court found that the children are entitled to be registered as Indians under the Indian Act through their maternal lineage, tracing entitlement through their great-great-grandfather (R.M.), great-grandmother (E.B.), grandfather (R.W.), and mother (M.M.).

The court identified the Mohawks of the Bay of Quinte – Tyendinaga Mohawk Territory as the children's band.

The Applicant Society brought a motion for summary judgment seeking a s. 57.1 custody order placing the child with the father, K.M., without Society supervision, along with supervised access for the mother and maternal grandparents, and a restraining order against the mother.

The mother and maternal grandparents opposed, seeking a change in primary residence or increased access.

The court denied the Society's request for a s. 57.1 order, finding that continued Society supervision was necessary due to unresolved issues regarding the child's counselling, the father's criminal record, bruising incidents, and concerns about the father encouraging contact with the mother.

The court ordered continued supervision for one year, maintained the mother's access, increased the maternal grandparents' access, and issued a permanent restraining order against the mother.

This is a costs decision following a trial in a family law matter involving custody and access.

The applicant was successful at trial and obtained an order granting supervised access to the respondent with various restrictions, including a 100-metre exclusion zone from the applicant's home, workplace, and child's school, and limiting communications to a designated program.

The respondent, who was self-represented, opposed the costs award and made unfounded allegations against the applicant's counsel.

The court awarded costs on a full recovery basis, finding both that the applicant was the successful party and that the respondent acted in bad faith through persistent attempts to have the applicant's counsel removed from the record by complaining to the judge, legal aid, and the Law Society.

The court awarded costs to the successful applicants (maternal grandparents) in a motion to change child support brought by the respondent father.

The respondents' motion to reduce child support from $700 per month was dismissed, and the temporary order was made final.

The applicants sought full recovery of costs totaling $21,175, but the court awarded $15,000 inclusive of disbursements and taxes.

The court considered the respondents' unreasonable conduct, including attempts to complain to police and the Law Society, failure to provide complete financial disclosure, and abandonment of the trial on the hearing date, which caused unnecessary legal expenses.

The Children's Aid Society brought a motion for summary judgment seeking to have a child made a Crown ward without access for the purpose of adoption.

The mother contested the motion and sought the return of the child to her care or alternatively placement with the maternal aunt under Society supervision.

The court found that the mother had failed to follow through with recommended services, had a history of substance abuse, and lacked the capacity to parent a child with global developmental delays.

The parenting capacity assessment indicated that the mother's ability to parent was contingent on compliance with recommendations and recovery from psychological difficulties.

The court granted summary judgment making the child a Crown ward with supervised monthly access to the mother.

The applicant sought an order for unsupervised access to his child for six hours weekly.

The respondent opposed the motion, arguing the child would be at risk of harm without supervision.

The court found that evidence suggested the applicant had a sexual interest in children and posed a risk of psychotic breakdown.

The court rejected the applicant's expert evidence as lacking independence and objectivity.

Supervised access was continued at two hours weekly.

The court also imputed income to the applicant for child support purposes and ordered monthly support payments.

The father brought a motion to change custody of his son from the mother and sought child support following a change of custody.

The mother had relocated to Nova Scotia with the child in 2007 without the father's consent and remained there for five years, during which the father had minimal contact with the child.

The father initially pursued criminal charges of child abduction rather than family court proceedings.

The court found that the child's habitual residence was in Nova Scotia and declined to exercise jurisdiction, dismissing the father's motion to change custody.

The court found the mother's conduct in violating court orders to be outrageous but determined that Nova Scotia was the more appropriate forum given the child's connections to that province.