Family and Matrimonial Law

The applicant mother brought a motion for a stay of a lower court order that directed the return of the parties' child to Milton and established Milton as the proper venue for their family law proceedings.

The Court of Appeal dismissed the motion for a stay, finding that the appeal did not raise a serious issue because the underlying order was interlocutory, and the mother failed to demonstrate irreparable harm to the child's best interests.

The appellant sought an extension of time to perfect an appeal from two interlocutory orders of Justice Shelston, which rejected his motion to vary a final custody order and awarded costs.

The Court of Appeal applied the four criteria for extending time: intention to appeal, length and explanation of delay, prejudice (especially to children), and merits of the appeal.

The Court found that the delay prejudiced the children by delaying the resolution of custody issues and that the appeal lacked merit because the orders were interlocutory and thus within the jurisdiction of the Divisional Court, not the Court of Appeal, requiring leave.

The Court of Appeal also stated it could not transfer or authorize the appeal, nor extend the time for seeking leave from the Divisional Court.

The motion for extension was dismissed without costs.

The appellant, Charles Mark Hilton, appealed the dismissal of his 14B motion by Nicholson J., which sought to set aside previous orders made in divorce proceedings, including those issued after he was noted in default.

The appellant alleged that the respondent, Marlene Dale Hilton, committed fraud through misrepresentations and material omissions during the uncontested trial.

Nicholson J. had dismissed the motion on the basis that the appellant had not appealed the earlier orders.

The Court of Appeal allowed the appeal in part, clarifying that while some orders resulting from the appellant's default required an appeal, the allegations of the respondent's misrepresentations and material omissions should have been determined on their merits under r. 25(19)(a) of the Family Law Rules.

The matter was remitted to the Superior Court for a new hearing on these specific allegations.

This is a costs endorsement from the Court of Appeal for Ontario.

The appellant was ordered to pay the respondent fixed costs of $20,000, inclusive of HST and disbursements, with the provision that these costs could be considered support payments for Family Responsibility Office purposes.

The applicant mother brought a motion to change a prior final custody order providing for joint custody and an equal week-about parenting arrangement.

She sought sole custody and supervised access for the father, arguing that ongoing parental conflict rendered the existing arrangement unworkable.

The court held that the applicant failed to establish a material change in circumstances as required by the governing test for variation of custody orders.

The evidence demonstrated that the parties' high-conflict relationship predated the original consent order and was foreseeable when it was made.

The child, represented by the Office of the Children’s Lawyer, expressed a clear wish to maintain the joint custody and equal parenting schedule.

The motion to change was dismissed and the respondent was awarded partial indemnity costs.

Following a lengthy family law trial addressing equalization of net family property, retroactive and ongoing child support, extraordinary expenses under s. 7 of the Federal Child Support Guidelines, and related property claims, the court determined the issue of costs.

Although the parties shared some success regarding valuation of the applicant’s business and equalization, the applicant was substantially successful on the majority of issues including retroactive child support and related claims.

The court found that the respondent acted unreasonably during the litigation, causing delays and prolonging the trial through incomplete financial disclosure and late expert evidence.

Applying Rule 24 of the Family Law Rules, the court awarded the applicant a mix of partial and substantial indemnity costs reflecting her success and the respondent’s conduct.

The respondent father brought a motion to set aside an order made after an undefended trial that granted the mother sole custody, adjusted parenting time, imputed income to the father, and ordered child support.

The moving party sought leave to file an answer and financial statement, arguing the order resulted in injustice and that he had not participated in the proceeding.

The court held that the Family Law Rules did not authorize setting aside the order and that the Rules of Civil Procedure provisions respecting default judgments could not be applied by analogy.

Even if applicable, the moving party failed to provide any explanation for his default and did not satisfy the criteria required to set aside a default judgment.

The court further found no manifest injustice warranting use of inherent jurisdiction.

In a child protection status review under the Child and Family Services Act, the Society moved for summary judgment seeking Crown wardship without access.

The child had been in care since birth and the parent had a longstanding history of child protection involvement, unstable housing, inconsistent access attendance, and exposure to domestic violence and substance-related concerns.

The responding parent filed no materials and made no substantive submissions to demonstrate a genuine issue for trial under Rule 16 of the Family Law Rules.

The court held that the evidentiary record established a prima facie case that the child remained in need of protection and that no less intrusive alternatives were available.

Summary judgment was granted making the child a Crown ward without access in order to permit permanency planning through adoption.

The applicant spouse sought an advance of $250,000 on a future equalization payment in ongoing family property litigation.

The court accepted that the applicant would almost certainly receive a substantial equalization payment exceeding $800,000 but held that the requested amount was not supported by evidence of a reasonable requirement for funds.

Applying the test from Laamanen v. Laamanen and related authorities, the court found the applicant had demonstrated the need for some funds to pursue litigation, including legal and expert expenses.

Exercising its discretion, the court ordered a more modest advance to level the litigation playing field while avoiding undue prejudice to the respondent’s corporate assets.

An interim advance of $50,000 on equalization was granted.

The court considered confirmation of a provisional order from the Court of Queen’s Bench of Alberta varying an earlier divorce judgment respecting child and spousal support.

Certain provisions relating to child support termination and post-secondary expenses were confirmed or varied on consent.

The court determined that retroactive child support should not be varied beyond June 1, 2009 pursuant to the parties’ Minutes of Settlement, resulting in a child support overpayment to be reimbursed to the payor.

The court also addressed variation of spousal support under s. 17 of the Divorce Act, finding a material change in circumstances and setting support at the low range of the Spousal Support Advisory Guidelines.

Ongoing spousal support was ordered at $2,400 per month commencing November 1, 2011.

Costs decision following a family law motion to change.

The applicant was entirely successful on the motion and sought costs on a substantial indemnity basis exceeding $21,000, while the respondent requested that no costs be awarded.

The court applied Rule 24 of the Family Law Rules, finding the successful party was presumptively entitled to costs but that neither party had acted in bad faith and the issues were not complex.

Considering the parties’ conduct, the financial circumstances of both parties, and the applicable jurisprudence, the court declined to award substantial indemnity costs and fixed costs on a partial indemnity basis.

In a family law motion to change child support, the applicant sought leave on the eve of trial to amend pleadings, conduct questioning of the respondent before trial, and obtain additional disclosure.

The proceeding had already been set down for trial following a settlement conference.

Applying Rule 48.04 of the Rules of Civil Procedure, adopted through the Family Court Rules, the court held that motions or discovery after a matter is placed on the trial list require leave and will only be granted in exceptional circumstances.

The court found no substantial or unexpected change in circumstances justifying procedural discovery and concluded that the proposed amendment would significantly expand the issues and delay the trial.

Leave was refused and the motion dismissed.

Following a marriage breakdown, the applicant sought divorce, custody of the parties’ two children, and resolution of financial issues including spousal support, child support, and property matters.

The respondent failed to attend trial despite receiving notice.

The court proceeded in her absence and treated facts in a Request to Admit as admitted due to non-response under the Family Law Rules.

Evidence demonstrated that the children had been primarily residing with the applicant and that the respondent had failed to maintain adequate living conditions and school attendance for one child.

The court granted the applicant sole custody with flexible access to the respondent, terminated the applicant’s support obligations under the temporary order, accepted a lump-sum set‑off of spousal support, and ordered no further equalization of property.

Following a bifurcated family law trial concerning custody and access, the court determined the appropriate parenting arrangement for two children of the marriage.

Although the children had primarily resided with the mother since separation, the evidence established a sustained pattern of parental alienation, denial of access, and non‑cooperation with parenting coordination and court processes by the mother.

The court found the father to be a credible and cooperative parent committed to facilitating the children's relationship with the other parent and adhering to the maximum contact principle.

Applying the best interests of the children test under the Divorce Act and the Children’s Law Reform Act, the court concluded the mother's conduct was harmful to the children’s relationship with their father and unlikely to change.

Primary care of the children was therefore awarded to the father with a structured parenting plan.

The parties brought competing motions to change support provisions in a divorce judgment issued in 2000.

The applicant sought the return of his passport and temporary relief from existing child and spousal support obligations after losing his employment and receiving employment insurance benefits.

The respondent opposed the passport release due to concerns the applicant would leave the jurisdiction and avoid support obligations.

The court accepted evidence that the applicant had made bona fide efforts to secure employment and had limited prospects in Canada.

The court granted the passport return and temporarily suspended spousal support while reducing child support based on the applicant’s current employment insurance income.

The applicant brought a motion seeking an order requiring the respondent to participate in arbitration pursuant to a mediation–arbitration agreement addressing parenting access issues concerning the parties’ child.

The respondent sought to strike or stay the motion on the basis that the applicant was in substantial arrears of child support under a prior Georgia judgment and had failed to comply with other obligations under that order.

The court held that the mediation–arbitration agreement constituted a binding contract entered into with independent legal advice and that the parties were required to comply with its terms.

The alleged breaches of the Georgia judgment were properly addressed in separate proceedings under the Interjurisdictional Support Orders Act and did not justify refusing enforcement of the arbitration agreement.

The respondent’s motion to strike or stay was dismissed and the applicant’s motion compelling arbitration was granted.

The applicant brought a motion to set aside a default judgment ordering child and spousal support and equalization, and to set aside an earlier order striking his pleadings and freezing his bank accounts.

He also sought to vary custody of the parties’ child.

Applying the test for setting aside default judgment, the court held the applicant failed to act promptly after becoming aware of the judgment, failed to provide a plausible explanation for the default, and failed to establish an arguable case on the merits.

The court found evidence that the applicant knew of the earlier orders yet delayed several years before bringing the motion.

The motion was dismissed, and the respondent’s cross‑motion for payment of support arrears and costs from funds paid into court was granted.

Following the breakdown of a marriage with one child, the parties sought determinations regarding child support, spousal support, and income imputation.

The applicant argued that the respondent was intentionally underemployed and requested that income be imputed for the purpose of calculating child support, while the respondent sought spousal support.

The court found that the respondent had made genuine and extensive efforts to obtain employment and was not intentionally underemployed, declining to impute income.

The court ordered the respondent to pay child support based on her actual income and found that she had established entitlement to spousal support based on economic interdependency and need following the marriage breakdown.

Ongoing spousal support was ordered on an indefinite basis, subject to review upon a material change in circumstances.

The responding parent sought a retroactive variation of a child support order that had been based on earlier income figures and provided for annual financial disclosure and recalculation of support.

The court held that the order’s adjustment clause should be enforced and recalculated the set‑off child support amounts based on updated income figures, including imputing income to the other parent based on concession.

Allegations that the payor’s retirement or the other parent’s business expenses justified further imputation were rejected for lack of evidence.

The court also addressed claims for extraordinary expenses, finding tutoring expenses reasonable and payable but denying reimbursement for camp expenses because prior consent required by the order had not been obtained.

Following a family law trial concerning the imputation of income for child support purposes, the court found that the father had deliberately organized his financial affairs to conceal income and frustrate his child support obligations.

Although the father succeeded on a minor access issue, the mother prevailed on the primary issue relating to income and child support.

The mother sought substantial indemnity costs of $17,320 inclusive of disbursements and HST.

The court held that the father's obstructive conduct, omissions in financial disclosure, and contradictory evidence justified the requested costs award.

Costs were awarded to the mother in full.