Family and Matrimonial Law

The Society brought a motion for summary judgment seeking a final order placing the child in the deemed custody of the respondent father, with parenting time for the respondent mother.

The mother opposed the motion, seeking the child's return to her care, and objected to the admissibility of unsworn reports from the child's treating psychologist.

The court held that the psychologist was a participant expert whose unsworn reports were admissible on a summary judgment motion.

Finding no genuine issue requiring a trial, the court granted the motion, placing the child in the father's custody with decision-making responsibility, and ordered parenting time for the mother.

The applicant father brought a motion in a high-conflict parenting dispute seeking to terminate the children's current counselling and commence reconciliation counselling to re-establish his parenting time.

The respondent mother agreed to terminate the current counselling but proposed trauma therapy before reconciliation counselling.

The court found no basis to delay reconciliation counselling and ordered the parties to immediately engage in reconciliation counselling with a newly appointed therapist pursuant to section 28 of the Children's Law Reform Act.

The father brought a motion to terminate his child support obligations for the parties' child, effective March 3, 2012, when the child moved in with him.

The mother filed an Answer but failed to attend the settlement conference and the uncontested trial.

The court found that the child had resided with the father since March 2012 and that the father had satisfied his child support obligations.

The court ordered the termination of child support effective March 3, 2012, and fixed the arrears owed to the mother at $0.00.

The applicant brought a motion to enforce a previous order for the sale of a property held by the parties as tenants in common.

The respondent, who was self-represented, had failed to comply with the previous order by delaying the selection of real estate agents and refusing to cooperate with the sale process.

The court found that the respondent had breached the previous order and granted the applicant sole authority to list and sell the property, dispensing with the respondent's consent.

The respondent was ordered to vacate the property within 60 days and to comply with outstanding disclosure obligations.

Following the dismissal of the applicant's motion for access to her granddaughter, the respondent sought full indemnity costs of $5,968.

The court found that while the applicant acted unreasonably in bringing the motion close to trial, she did not act in bad faith.

Applying the principles of reasonableness and proportionality under the Family Law Rules, the court rejected the claim for full indemnity costs, deducted fees unrelated to the motion, and awarded the respondent partial indemnity costs fixed at $2,250.

The applicant father sought a refund of child support and section 7 expenses paid for his adult son's post-secondary education.

The father had continued to pay the full table amount of support while the son lived away from home, and argued that many of the section 7 expenses claimed by the respondent mother were already covered by the table amount.

The court found that the son was required to contribute to his own education from summer earnings and grants, and that expenses such as food, utilities, and toiletries were covered by the table support.

The court ordered the mother to reimburse the father $20,822.73 for overpaid section 7 expenses and support paid after the son began working full-time.

The applicant brought a motion for a Certificate of Pending Litigation (CPL), a preservation order, and expanded financial disclosure in a family law proceeding following a long marriage.

The applicant alleged the respondent unilaterally sold a jointly acquired rental property and transferred funds to purchase a new property in his sole name, while failing to provide adequate financial disclosure.

The court granted the CPL, finding a reasonable claim for a constructive trust, and issued a preservation order under sections 12 and 40 of the Family Law Act to prevent the dissipation of assets.

The court also ordered the respondent to provide detailed financial disclosure, noting his previous non-compliance had frustrated the progress of the case.

The applicant sought costs following a successful motion for temporary child and spousal support.

The court found the applicant was largely successful and that her offers to settle were as or more favourable than the final order on most issues.

The court also found the respondent engaged in bad faith by unilaterally withdrawing funds from a joint account and unnecessarily seizing a vehicle from the parties' daughter.

The court awarded the applicant $25,000 in costs, with $15,000 payable forthwith and $10,000 to be set off against any future equalization payment owed by the applicant.

The respondent sought full indemnity costs of $15,123.05 following a successful motion for child support and section 7 expenses.

The applicant argued that each party should bear their own costs or that costs be fixed at $5,000.

Applying the principles of reasonableness and proportionality under Rule 24(12) of the Family Law Rules, the court rejected the request for full indemnity costs.

The court fixed the respondent's costs at $8,250, inclusive of fees, disbursements, and HST, after accounting for a $750 set-off for a prior adjournment.

The moving party brought a motion to strike the responding party's pleadings and for costs due to her failure to comply with a prior disclosure order.

The court found that the responding party had disobeyed the order and that her non-compliance was willful, despite her claims that her former lawyer was responsible.

However, the court concluded that striking pleadings is a remedy of last resort and the non-compliance was not egregious enough to warrant such a drastic measure.

The court dismissed the request to strike pleadings but ordered the responding party to pay $5,000 in costs and to produce the remaining outstanding disclosure forthwith.

The applicant wife moved for an order under the Partition Act for the sale of the jointly owned matrimonial home prior to trial.

The respondent husband opposed the motion, relying on a temporary without prejudice consent order that granted him exclusive possession.

The court held that a material change in circumstances was not required to vary a temporary without prejudice order.

Finding that the husband had no competing interests under the Family Law Act that would defeat the wife's prima facie right to sale, the court granted the motion and ordered the home to be listed for sale.

The mother brought a motion to change a final consent order, seeking sole custody of the parties' two children who have autism spectrum disorder.

The court found that the father's unilateral decision to move residences and change the children's schools constituted a material change in circumstances.

However, applying the best interests of the child test, the court dismissed the mother's motion for sole custody, finding the father offered greater stability and was more likely to maximize contact.

The court ordered shared care on consent but maintained the father's sole decision-making authority.

The parties signed Minutes of Settlement agreeing to appraise certain properties and to have a mediator arbitrate any equalization issues.

A dispute arose over the appraisal of one property, and the mediator issued an award stating he had the ultimate authority to determine its value, despite the parties not having executed a formal family arbitration agreement.

The husband appealed and applied to set aside the award.

The court held that while the mediator could not proceed without a formal arbitration agreement, his interpretation of his authority under the Minutes of Settlement was reasonable.

Applying the principle of good faith contractual performance, the court ordered the husband to execute the family arbitration agreement.

The respondent mother brought a motion for interim child and spousal support.

The parties had a cohabitation agreement limiting child support to $1500 per month and waiving spousal support.

The court deferred the spousal support issue to trial but found the child support provision unreasonable under s. 56(1.1) of the Family Law Act given the father's high income and the mother's modest means.

The court imputed an income of $30,000 to the mother and ordered the father to pay $2500 per month in interim child support for their special needs child in a shared parenting arrangement.

The applicant mother brought a motion for contempt against the respondent father, alleging he failed to comply with four court orders relating to disclosure and access.

The court dismissed the motion, finding that two of the interim orders had been superceded by a final settlement, the father's failure to disclose a change in spousal support did not breach an order requiring disclosure of child support changes, and the mother failed to prove beyond a reasonable doubt that the father breached the final access order.

The Children's Aid Society brought a motion to dismiss the mother's appeal of a trial decision that dismissed her Status Review Application and maintained a Crown wardship order.

The mother had failed to order trial transcripts or perfect her appeal due to financial constraints.

The court applied the test for dismissing an appeal for delay, emphasizing the overwhelming prejudice to the children, who had been in foster care for nearly seven years and required permanency.

Finding no merit to the appeal and no prospect of it being perfected, the court granted the motion and dismissed the appeal.

In a dispute over the date of separation in a divorce proceeding, the applicant sought production of an intake form the respondent had completed at a lawyer's office.

The respondent had not retained or met with the lawyer, but completed the form seeking legal advice.

The court held that the intake form was protected by solicitor-client privilege, as it was completed for the purpose of seeking legal advice.

The court further found that the applicant failed to meet the onus to override the privilege, as the date of separation could be established through other evidence.

The request for production was denied.

The moving party (former husband) brought a motion to change a 2013 consent order to terminate his $1,500 monthly spousal support obligation and life insurance requirement, citing his voluntary retirement at age 65 and resulting income reduction.

The court found his retirement constituted a material change in circumstances.

However, recognizing the responding party's compensatory claims from a 25-year marriage where she stayed home to raise four children, the court declined to terminate support entirely.

Instead, spousal support was reduced to $1.00 per month effective July 1, 2016, and the life insurance obligation was maintained to secure potential future support.

The moving party mother brought a motion seeking week-about parenting time for her two children, aged 15 and 8.

The Office of the Children's Lawyer reported that the older child preferred visiting every second Saturday, and the younger child preferred day visits only due to anxiety.

The court dismissed the request for week-about parenting, ordering day visits for the younger child on Saturdays and maintaining the current arrangement for the older child.

No costs were awarded.

The father appealed a trial judge's order making his child a Crown ward and denying him the right of access, instead granting the child the right to hold access.

The father argued the trial judge misapprehended the evidence regarding his plan of care and erred in the access determination.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors.

The trial judge's conclusions that the father's plan of care was not viable and that granting the father access would impair the child's future adoption prospects were fully supported by the evidence.