Family and Matrimonial Law

This corrigendum corrects a clerical error in the reasons for judgment released on June 30, 2016.

Specifically, the date for fixing spousal support arrears in paragraph 2 of the final order is corrected from "November 5, 2011" to "November 5, 2015", thereby fixing the spousal support arrears at $24,187 as of the corrected date.

The mother brought a second motion to change, seeking to relocate the child's residence from Barrie, Ontario, to Manchester, England, and to update child support.

The father opposed the relocation and sought increased parenting time.

The court dismissed the mother's motion to change residence, finding no unforeseen material change in circumstances since the previous order.

The court found that the mother's actions, such as enforcing supervised access, were a deliberate attempt to create a parental vacancy.

However, the father's parenting time was modestly increased, and child support payments were varied.

This endorsement addresses an oral motion brought by applicants in four consolidated parentage applications involving assisted reproductive technologies (ART).

The motion sought to dispense with the Superior Court of Justice Practice Direction's requirements for formal notice and media notification regarding discretionary publication bans and sealing orders under s. 137(2) of the Courts of Justice Act.

The court considered the Dagenais/Mentuck test and the best interests of the child, finding that sealing orders are necessary to prevent serious risk to the proper administration of justice and to protect the privacy and dignity of the children, intended parents, surrogates, and their families.

The court concluded that the salutary effects of dispensing with notice and sealing the files outweigh any deleterious effects on public expression.

The court rendered a costs endorsement following a motion by the respondent to strike the applicant's pleadings for failure to provide financial disclosure.

Although the underlying motion was dismissed because the applicant provided the bulk of the disclosure after being served, the court found the applicant's compliance was solely due to the respondent bringing the motion.

Applying Family Law Rule 24, the court determined the applicant's conduct was unreasonable and awarded costs to the respondent, emphasizing that parties should not be forced to bring motions to ensure compliance with court orders.

Following a trial that determined the validity of a separation agreement, the court addressed costs.

The self-represented applicant sought full indemnity for all action costs, totaling $14,684.00.

The respondent argued for costs limited to the trial of the issue, suggesting $2,582.00.

The court awarded the applicant $3,000.00, inclusive of HST, for the costs related specifically to the trial of the issue, payable by the respondent within 90 days, noting that other costs could be sought in the overall resolution of the proceeding.

A father sought access to his six‑year‑old child after nearly five years of minimal or no contact and in circumstances where the mother failed to participate in the litigation and repeatedly frustrated prior access arrangements.

Evidence included a psychological assessment recommending only supervised contact due to concerns about the father’s emotional stability, parenting insight, and past substance abuse.

Applying the best interests test under s. 24 of the Children’s Law Reform Act, the court emphasized the child’s right to know both parents while balancing safety concerns.

The court found that completely denying access would be inappropriate despite the lengthy absence of contact.

Transitional supervised access through a counselling service was ordered, with further court review to monitor progress.

The parties brought cross-motions to vary a 2007 consent support order addressing child support, spousal support, and the sharing of postsecondary expenses.

The court found the respondent intentionally underemployed and imputed full‑time income based on her previous salary.

Applying principles governing entitlement to share in post‑separation income increases, the court held that the respondent had not established compensatory entitlement to benefit from the applicant’s increased earnings.

The court rejected the respondent’s claim for retroactive and increased future spousal support.

The consent order was varied to adjust child support and allocate expenses proportionate to the parties’ incomes while leaving spousal support unchanged.

The moving party brought a motion to change a consent order governing child and spousal support after losing employment and experiencing a substantial reduction in income.

The responding party argued that the original order reflected imputed income and that the payor continued to conceal income, relying on pleadings from unrelated litigation and alleged disclosure deficiencies.

The court held that the pleadings were not evidence and that there was no proof of hidden income.

Applying the definition of "true income" in the consent order and the test for variation established in Willick v. Willick and G.(L.) v. B.(G.), the court found a material change in circumstances due to the payor’s reduced income.

The court therefore varied the child support and spousal support provisions retroactively but declined to delete the arrears provision.

The applicant sought a stay of an interim family arbitration award permitting the respondent to list and sell the matrimonial home prior to trial.

The court considered whether it had jurisdiction to grant a stay pending an appeal of the arbitration award and concluded that jurisdiction arose under s. 134(2) of the Courts of Justice Act.

Applying the RJR‑MacDonald test, the court found the appeal raised a serious issue regarding whether the arbitrator failed to address relevant grounds relating to the applicant’s claimed beneficial interest in the property through constructive or resulting trust.

The court determined that an immediate sale could cause irreparable harm by undermining the applicant’s proprietary claims and development potential of the property.

The balance of convenience narrowly favoured preserving the status quo pending the appeal or arbitration trial.

A confirmation hearing was held under ss. 18–19 of the Divorce Act regarding a provisional order issued by the Supreme Court of British Columbia varying child support obligations between former spouses.

The responding party opposed confirmation of a provision offsetting child support arrears, arguing that outstanding arrears and unpaid section 7 educational expenses remained unresolved and that the moving party had failed to provide required financial disclosure.

The court found the evidentiary record insufficient to determine the proper calculation of arrears and proportional contributions to post‑secondary expenses.

Pursuant to s. 19(6) of the Divorce Act, the court remitted the matter to the issuing court in British Columbia for further evidence and adjourned the confirmation hearing.

The applicant sought to enforce an alleged settlement by accepting an offer contained in the respondent’s settlement conference brief more than two years after it was initially rejected.

The court held that offers contained in settlement conference briefs are not Rule 18 offers under the Family Law Rules but are governed by the law of contract, informed by the Family Law Rules, the Courts of Justice Act, and the Rules of Civil Procedure.

Although such offers may become binding contracts upon acceptance, they may also be implicitly withdrawn by subsequent written offers that are less favourable to the opposing party.

The court found that later settlement proposals reducing the applicant’s share constituted implicit withdrawal of the earlier offer.

Accordingly, the purported acceptance did not create a binding agreement enforceable by the court.

The applicant mother brought an urgent motion seeking reinstatement of access to the parties’ two children after the respondent father unilaterally terminated the existing alternating-week parenting schedule following service of the application for custody and support.

The court found that the prior arrangement, which had operated for approximately 15 months, constituted the status quo and that no compelling reasons had been established to justify altering it.

The father’s unilateral restriction of the mother’s access was found to stem from an erroneous belief that he could control the children’s access and from a reaction to the litigation.

Applying principles from interim custody jurisprudence, the court held that compelling reasons are required to disturb the status quo on an interim motion and that shared parenting should be encouraged where feasible.

Access was therefore reinstated gradually, returning the parties to the previous alternating week schedule.

Following a three‑day family law trial concerning retroactive support and related issues, the court addressed the issue of costs under the Family Law Rules.

The applicant argued that each party should bear their own costs or that the respondent should pay her costs, while the respondent sought costs on the basis that he was substantially more successful and had taken more reasonable positions.

The court considered the parties’ conduct, the complexity and importance of the issues, the reasonableness of settlement offers, and the respondent’s greater success at trial.

Although the court found the applicant had acted in bad faith by delaying her claims for more than ten years, it declined to award full indemnity costs because the respondent was not completely successful.

Partial indemnity costs were awarded in favour of the respondent.

The moving party sought an order under the Partition Act compelling the sale of a matrimonial home following separation.

The responding spouse opposed the sale, arguing that competing claims regarding ownership and the validity of two marriage contracts created substantial rights that could be prejudiced by an immediate sale.

Evidence suggested the responding spouse, an elderly individual residing in the home with a permanently disabled adult child, would suffer hardship if required to relocate before trial.

The court held that while co-owners have a prima facie right to partition and sale, the discretion under the Partition Act allows refusal where hardship or oppression would result.

Given unresolved issues regarding ownership and the potential prejudice to the responding spouse’s rights under family law claims, the motion for sale was dismissed.

The respondent mother sought leave to bring a status review application of a prior final order that had made the child a crown ward without access following a lengthy trial.

The court considered the test under s. 65.1(5) of the Child and Family Services Act, which requires credible and weighty evidence demonstrating that a review hearing may be warranted in the child’s best interests.

The court found the moving parent had not demonstrated meaningful change or engagement with therapeutic supports addressing the issues that led to the crown wardship order.

Evidence showed the child had improved significantly in foster care and the parent remained focused on her own desire for access rather than the child’s best interests.

Leave to bring the status review application was denied and the society’s motion to dismiss was granted.

An undefended family law trial proceeded after the respondent was noted in default for failing to file responding materials.

During the hearing the respondent attended court seeking to participate and file an answer, citing criminal charges and bail conditions that had complicated communication and participation.

The court severed the divorce from corollary relief and granted the divorce while setting aside the noting in default to permit the respondent to file an answer within 30 days.

Temporary orders were made for custody, access, and child support, including guideline support based on imputed income and shared daycare expenses.

The request for section 7 extraordinary expenses and a restraining order was declined due to insufficient evidence.

Following the release of a family law judgment, the applicant requested corrections relating to spousal support arrears and the valuation and division of a federal pension.

The court convened a hearing to address the parties’ correspondence and clarify the issues.

Based on updated information and the parties’ agreement, the court amended the earlier judgment to revise the amount of retroactive spousal support owing and corrected the pension division to reflect the maximum transferable amount under the Public Service Superannuation Act pension regime.

The revised order required the applicant to apply for pension division rather than make an immediate lump‑sum payment.

The court also clarified the distribution of proceeds from the sale of the matrimonial home.

Following a family law motion concerning child support issues including daycare expenses and security for support, the court determined the issue of costs.

The applicant sought over $9,000 in costs and argued the respondent's failure to file an answer, provide financial disclosure, and adopt a hard‑line litigation approach unnecessarily prolonged the proceedings.

The court found that the respondent's conduct caused delay and increased costs, though the applicant was not successful on all issues, including a request for life insurance as security.

Considering the applicant’s offer to settle and partial success by the respondent, the court awarded reduced costs.

The costs were ordered enforceable through the Family Responsibility Office as they were connected to child support.

The Family Responsibility Office sought enforcement of child support arrears against the respondent pursuant to prior consent orders governing periodic child support and extraordinary expenses.

The respondent disputed the arrears calculation, alleging that certain extraordinary expenses were improperly included, that payments previously made under protest were not credited, and that certain accounting charges were erroneous.

The court interpreted the prior variation order as having established a “clean slate” fixing arrears as of specified dates, thereby incorporating all credits and charges up to that time.

The court accepted the enforcement calculation and determined the respondent remained in arrears.

The respondent was ordered to pay the arrears by a specified date, failing which enforcement by committal could be sought.

Cross-motions to change a consent family law order addressing custody, access, child support, and spousal support for multiple children of the marriage.

The court considered whether a material change in circumstances justified variation of the joint custody and detailed access regime established in the consent order.

Applying the material change threshold under the Divorce Act and the Children’s Law Reform Act, the court found no sufficient change to justify altering the custody or access provisions.

However, adjustments were required for support obligations due to the payor’s temporary disability income and uncertainty regarding his return to employment.

The court ordered recalculated child support based on disability income, interim spousal support pending resumption of employment, and set-off of support arrears against a mortgage debt owed between the parties.