Family and Matrimonial Law

Appeal from a trial judgment in a family law matter involving parenting, child support, spousal support, validity of a separation agreement, equalization of net family property, post-separation adjustments, and the sale of matrimonial properties.

The appellant challenged the trial judge's equalization calculation regarding loans from his mother, post-separation adjustments to equalization payments, and the commencement date of spousal support.

The Court of Appeal allowed the appeal in part, granting an additional post-separation credit for inheritance funds deposited to a joint account, while dismissing other grounds of appeal.

The applicant sought a declaration that his ex-wife, the respondent, was an absentee under the Absentees Act and that he be appointed as the committee of her joint interest in a property.

The respondent had returned to India and ceased communication, causing the applicant difficulty in refinancing their jointly held mortgage.

The court found that survivorship was not an available remedy as there was no evidence of death.

Interpreting the Absentees Act remedially, the court declared the respondent an absentee pursuant to section 8 and appointed the applicant as the committee of her estate in Ontario, granting him power to manage, encumber, sell, or otherwise deal with her interest.

The court emphasized adapting statutory interpretation to modern globalized society and protecting the interests of those left behind.

This is a costs endorsement following a one-day trial concerning parenting and child support arrangements for a four-year-old child and a restraining order request.

The respondent was the successful party, obtaining sole custody, supervised parenting time for the applicant, a restraining order, and child support.

The court awarded costs of $2,500 to the respondent, inclusive of fees, disbursements, and HST.

The applicant, acting in person, did not rebut the presumption of costs in favour of the successful party and did not make submissions on costs.

The applicant mother unilaterally suspended the respondent father's in-person access to their four-year-old daughter in March 2020, alleging that the father and his partner were physically and emotionally abusing the child.

The father brought a motion to reinstate his access.

The court found that while there had been a material change in circumstances, the allegations of abuse were not established on the evidence.

The court found the mother's extensive recordings of the child, the child's statements, and photographs of bruises to be of limited probative value and highly prejudicial.

The court reinstated the father's access substantially as ordered in the prior trial judgment, with additional terms prohibiting recording and directing further assessment of the child's behavioral and health needs.

This endorsement addresses the re-opening of a child protection trial due to material changes in circumstances and establishes detailed procedural guidelines for its continuation via videoconferencing.

The court outlines protocols for evidence submission, witness examination, document management, and technological requirements to facilitate a virtual hearing during the COVID-19 pandemic, drawing upon best practices for remote hearings.

This decision addresses costs following a motion brought by the applicant mother concerning child access for their medically fragile child amidst COVID-19 risks.

The motion, while unsuccessful in terminating the respondent father's face-to-face contact, served to highlight both parents' unreasonable conduct and failure to prioritize the child's best interests.

The court found both parties exposed the child to unnecessary risks and used affidavits for venting frustrations.

Applying principles of reasonableness and proportionality, the court awarded the respondent father $1,000 in all-inclusive costs, significantly less than requested, due to his own unreasonable behaviour and the divided success of the motion.

The applicant brought a motion to vary existing access orders and requested a police enforcement clause, seeking access in his home instead of the current in-and-out arrangement in the matrimonial home.

The matter was referred to a triage judge under the COVID-19 protocol to determine urgency.

The court found the matter was not urgent, as the children's safety was not at risk.

The judge emphasized that parents should prioritize the children's best interests, follow Health Canada safety protocols, and avoid litigation during the pandemic.

The applicant's past actions regarding COVID-19 recommendations raised legitimate concerns for the respondent.

The motion was dismissed as not urgent.

This endorsement addresses costs following a complex family law trial involving corporate interests, income determination, child and spousal support, and property division.

The Applicant sought full indemnity costs of $578,388.22, while the Respondent sought partial indemnity costs of $150,000 against the Applicant.

The court found the Applicant substantially, though not completely, successful on major issues.

The Respondent's conduct, particularly concealing the sale of a business, was deemed extremely unreasonable and prolonged litigation, ruling out any costs award in her favour.

No bad faith was found by either party.

Considering the Applicant's success, the Respondent's unreasonable conduct, the complexity of issues, and the parties' ability to pay, the court ordered the Respondent to pay the Applicant $350,000 in costs.

This is a ruling on a voir dire regarding the admissibility of child hearsay evidence consisting of statements made by an eight-year-old child to his foster mother regarding being locked in his bedroom and having the light bulb removed.

The Children's Aid Society sought to introduce these statements through the foster mother's testimony under the principled approach to hearsay admissibility.

The court rejected the application, finding that the society failed to establish sufficient necessity for the hearsay evidence, as the child was capable of testifying viva voce at age twelve.

The court noted that while threshold reliability was satisfied, the necessity requirement was not met, particularly given that the statements were made to a foster mother rather than to investigators or police, and were explanatory rather than responsive to interrogation.

The applicant brought a motion to change a previous child support order, seeking to terminate child support for Julia, obtain repayment for orthodontic expenses, fix arrears, amend a prior order, impute income to the respondent for s. 7 expenses, and claim retroactive/prospective child support for Anna.

The respondent sought retroactive child support adjustment and payment of s. 7 expenses.

The court found a change in circumstances, dismissed the retroactive claim for Anna, and imputed income to the respondent equivalent to the applicant's for the purpose of equally sharing Julia's s. 7 and post-secondary education expenses.

The applicant was found to owe the respondent retroactive child support after credits.

This is an evidentiary ruling on the admissibility of child hearsay statements in a status review application under the Child and Family Services Act.

The applicant society sought to place a 12-year-old child in the custody of her maternal aunt and sought only supervised monthly access for the respondent father.

The respondent sought custody or significant access.

The court held a voir dire to determine the admissibility of over 250 child statements made to two society workers.

The court applied the principled approach to hearsay admissibility, examining both procedural and substantive reliability.

The court admitted most statements made pursuant to the state of mind exception and most statements for the truth of their contents, with the exception of historic allegations of abuse that the child had recanted.

The Catholic Children's Aid Society brought a temporary care and custody motion in a child protection proceeding involving twin five-year-old girls.

The Society alleged the children were at risk of physical and emotional harm in their mother's care due to inappropriate physical discipline, exposure to parental conflict, school attendance issues, and allegations of sexual abuse against the father.

The mother opposed the motion and sought to maintain custody with minimal or no conditions.

The court found credible and trustworthy evidence of risk of harm and determined that the children could not be adequately protected by an interim supervision order given the mother's lack of cooperation with the Society and her pattern of refusing services.

The court granted the Society's motion, placing the children in the temporary care and custody of their father, subject to the Society's supervision and various terms and conditions, including supervised access for the mother.

The appellant appealed a trial judge's decision in a family law matter concerning income imputation and asset division.

The trial judge found the respondent was unemployed and effectively unemployable based on medical evidence and refused to impute income.

The appellant challenged the trial judge's curtailment of cross-examination on the respondent's medical condition and the refusal to grant an adjournment for additional witnesses.

The Court of Appeal upheld the trial judge's decisions, finding no error in enforcing time limits, refusing the adjournment without reasonable explanation for late witness summoning, and finding that family assets were divided equally with the appellant purchasing Syrian properties from equalization proceeds.

The claimant sought retroactive child support from the respondent under the Interjurisdictional Support Orders Act for a child born in Saskatchewan to parents who did not cohabit.

The respondent initially disputed paternity but DNA testing confirmed his biological relationship to the child.

The court applied the principles from D.B.S. v. S.R.G. to determine whether retroactive support should be awarded and, if so, from what date.

The court awarded retroactive child support from January 1, 2015 to August 31, 2016, with ongoing prospective support commencing September 1, 2016.

The applicant sought an order to permit her to register her child, Kalle, in the National Ballet School (NBS) for the 2016/2017 year.

The respondent opposed this motion, arguing that Kalle's weekend classes would interfere with his limited access time with both children.

The court considered the child's best interests and the "maximum contact principle," finding insufficient evidence that Kalle's participation in the NBS Associates Program, which is not the professional program, should override the respondent's access time.

The motion was dismissed.

The applicant sought to vary his child support obligations, arguing for a reduction based on his corporate income and losses.

The respondent sought to increase the applicant's income by adding back various corporate deductions and imputing hypothetical interest and tip income.

The court largely rejected the respondent's proposed additions for automotive expenses, amortization, non-arm's length salary, and hypothetical interest, finding the forensic accountant's testimony problematic.

However, the court agreed to add back child support improperly deducted as a company expense and grossed-up tip income.

The court calculated the applicant's income for child support purposes for several periods, resulting in adjusted monthly payments, and maintained the 50/50 split for Section 7 expenses as per the original agreement.

The Applicant brought a motion for a finding of contempt against the Respondent for unilaterally denying him access to their son.

The Respondent had denied access based on information from the Applicant's estranged ex-girlfriend concerning an alleged altercation and steroid use.

The court found the Respondent in contempt, ruling that the alleged incident did not constitute a "serious risk of harm" to the child, which is the only legal justification for breaching a court order.

The Applicant's original unsupervised access was reinstated, and makeup access was granted.

The Respondent's cross-motion for an interim variation of access and a s. 30 assessment was denied leave and adjourned to a Case Conference, as no urgency or clear case for relief was established.

The court addressed two consolidated family responsibility cases involving arrears of child support.

Default orders had been made on January 21, 2016, committing the respondent father to jail for 90 days or until payment of $3,500 in each case, with the warrants of committal held in abeyance.

On the return date of January 29, 2016, the parties advised that the father had paid the ordered sums.

The court rescinded the warrants of committal.

A child protection trial concerning an infant born to a mother whose three older children had recently been made crown wards.

The Children's Aid Society sought crown wardship without access for the infant.

The mother sought dismissal of the application or, alternatively, placement in her care with supervision.

The grandmother sought placement of the child in her care with supervision.

The court found the child was in need of protection based on the mother's history of poor judgment, inability to recognize safety hazards, dishonesty with the court and society, and failure to engage in necessary therapeutic interventions.

The court also found the grandmother posed unacceptable risks due to her own protection history, dishonesty, and breach of court orders.

The court made the child a crown ward without access, finding adoption was in the child's best interests.

The applicant father brought a motion to change a final custody order from October 29, 2012, seeking equal shared custody (week on/week off arrangement) of two children.

The respondent mother opposed the change and sought increased child support based on the father's reported 2013 income.

The court found no material change in circumstances warranting a change in custody.

The father's aggressive and confrontational conduct, including inappropriate emails and text messages to the mother, combined with his partner's interference at the children's school and the issuance of trespass notices, militated against granting equal parenting.

The court maintained the existing joint custody arrangement with primary care remaining with the mother and kept child support at $400 per month.