Family and Matrimonial Law

The appellant appealed a motion judge's order for the partition and sale of a property under the Partition Act.

The appellant argued the motion judge erred by ordering the sale despite a triable issue regarding a trust claim and by failing to find the respondent's conduct was malicious, vexatious, or oppressive.

The Divisional Court dismissed the appeal, finding the respondent's desire to untangle financial affairs was reasonable and the appellant failed to establish prejudice arising from the sale.

The parties brought competing motions for interim relief regarding parenting time, child and spousal support, and the sale of the jointly-owned family home.

The court ordered that the father's parenting time with the daughter remain subject to her wishes due to trauma from witnessing domestic violence, but granted in-person and virtual parenting time with the son.

The court imputed $30,000 in partnership income to the father due to inadequate financial disclosure, fixing his income at $120,000, and ordered him to pay interim child and spousal support.

The court also directed that the family home be listed for sale by July 2022.

The respondent father brought a motion to reduce his child support obligations, citing a reduction in income and the child's graduation from high school.

The father repeatedly failed to file the necessary financial disclosure and evidence required by previous court orders.

Despite his non-compliance, the court adjourned the motion one final time to allow him to file the requisite evidence, noting that dismissing the motion would unfairly require the self-represented mother to respond to a new motion to change.

The Applicant Mother brought a motion to strike the Respondent Father's pleadings and prohibit future filings due to his failure to pay child support arrears, non-payment of costs, and abusive behaviour, including vile text messages and breach of a restraining order.

The Respondent Father had also relocated to Tanzania while seeking primary residency of the child.

The court struck the Father's Notice of Motion due to his exceptional conduct of relocating to another continent while seeking residency.

The court also ordered that the Father may only file responding pleadings upon bringing his child support arrears and outstanding costs awards into good standing.

Costs of $15,000 were awarded to the Mother.

The Husband brought a motion to amend his application to withdraw admissions regarding the interpretation of a marriage contract.

The Wife brought a cross-motion seeking disclosure of counselling records for a section 30 assessment, interim sole decision-making responsibility for healthcare, and disclosure of rental platform records.

The court refused to allow the Husband to withdraw his admissions but permitted him to plead an alternate interpretation.

The court ordered the Husband to sign consents for the release of counselling records if requested by the assessor, declined to grant the Wife interim sole decision-making responsibility but made specific orders for the children's healthcare, and ordered the Husband to sign consents for the release of rental platform records.

The applicant father brought a motion for interim child and spousal support, while the respondent mother brought a cross-motion to terminate previous preservation orders and for directions on property sale proceeds.

The court imputed the mother's income at $350,000, adjusting for unpaid business expenses and undeclared cash income.

The father's income was imputed at $50,000 due to intentional underemployment.

The mother was ordered to pay $3,722 in monthly child support and $1,966 in monthly spousal support.

The court also directed that the carrying costs of a jointly owned property be paid from the proceeds of the sale of the matrimonial home.

The applicant, who is not the biological father of the respondent's child, brought an urgent motion for interim contact pending a final determination of whether he is a 'parent' under the Family Law Act.

The respondent opposed the motion, seeking to end all contact.

The court applied the best interests of the child factors under section 24 of the Children's Law Reform Act and found that the applicant did not meet his onus to establish that ongoing interim contact was in the child's best interests.

The court ordered two final supervised visits to gradually phase out contact, after which there would be no further contact pending the final determination of the application.

In supplementary reasons following a trial, the court determined the quantum and duration of spousal support owed by the applicant to the respondent.

The court applied the Spousal Support Advisory Guidelines, factoring in imputed incomes for both parties and changing parenting arrangements over the years.

The applicant was ordered to pay $78,261 in retrospective spousal support and $6,053 monthly in prospective spousal support for an indefinite duration, subject to review.

The applicant was also ordered to maintain a $1,000,000 life insurance policy to secure his support obligations.

Following their separation, the parties disputed the ownership and value of their jointly built business, Holdco.

The applicant claimed he owned 70% of the common shares, while the respondent claimed a 50% ownership based on their post-separation conduct and equal dividend payments.

The court found the respondent owned 50% of the shares, noting that the corporate records were inaccurate and the applicant had treated the respondent as an equal owner.

The court also held that the claim was not statute-barred and valued the business at $10,800,000, ordering the applicant to pay the respondent $5,400,000 for her shares.

Following a successful motion by the applicant father for a Section 30 parenting assessment, the court determined the appropriate quantum of costs.

The applicant sought full recovery of $13,704.08 based on an offer to settle, while the respondent argued for no costs or a maximum of $5,000.

The court found the applicant's offer to settle was as favourable as the final order and that the respondent's conduct in opposing the motion was unreasonable.

The court awarded the applicant costs of $11,017.50 inclusive of HST.

The parties disputed the funding of their children's post-secondary education.

The children had significant RESPs and large informal trust funds gifted by their maternal grandfather.

The applicant father argued the children had the means to fully fund their education, while the respondent mother argued the parents should still contribute.

The court rejected both all-or-nothing positions, ordering that education costs be funded first by scholarships and RESPs, followed by a $7,500 annual contribution from the parents shared proportionally to their incomes, with the children funding the balance from their own means.

The applicant mother brought an urgent motion for the return of the parties' child after the respondent father refused to return the child following his parenting time.

The court found that the respondent improperly engaged in self-help by altering the established status quo.

The court ordered the immediate return of the child to the applicant's primary care and established a temporary parenting schedule for the respondent.

The applicant's request for a restraining order was dismissed due to insufficient evidence, but a no-contact order was issued restricting communication to a parenting app.

The applicant grandmother brought a motion for temporary contact with her 7-year-old grandchild after the respondent parents suspended contact in February 2020.

The parents, who share joint residency, opposed the motion, citing concerns about inappropriate behaviour and parental autonomy.

The court dismissed the temporary motion, finding insufficient evidence to conclude the parents acted arbitrarily under the Chapman test.

However, the court ordered the involvement of the Office of the Children's Lawyer for a s. 112 assessment to assist in determining the child's best interests.

Following a family law trial, the respondent sought $250,000 in costs on a partial indemnity basis, while the self-represented applicant argued no costs should be awarded due to divided success.

The court found that the respondent was significantly more successful overall and that the applicant engaged in unreasonable litigation conduct, including failing to disclose assets and taking untenable positions.

The court awarded the respondent $165,000 in costs, inclusive of fees, disbursements, and HST, payable from the applicant's share of the matrimonial home sale proceeds.

The respondent mother brought an urgent motion for the return of the parties' seven-year-old child to her primary care after the applicant father unilaterally withheld the child following a medical incident.

The father alleged the mother had substance abuse issues, but a Children's Aid Society investigation did not verify these concerns.

The court found that the father engaged in inappropriate self-help by altering the established status quo without a compelling reason.

The court ordered the child returned to the mother's primary care, restored the previous parenting schedule, and permitted the mother to return the child to his original school.

The applicant brought a motion for a preservation order under section 12 of the Family Law Act to prevent the respondent from dissipating assets, specifically the proceeds from the sale of several real properties owned by his corporations.

The respondent argued the applicant must meet the strict test for a Mareva injunction.

The court rejected the application of the Mareva test, noting the respondent had previously admitted the applicant owned half the land.

The court granted a narrow preservation order restricting the depletion of the net proceeds of the sale of the specific properties.

The Respondent brought a motion to amend his Answer after the conclusion of the trial, while the decision was under reserve, to add a claim for a resulting trust over a property.

The trial had proceeded on the basis of a constructive trust claim.

The court dismissed the motion, finding that allowing the amendment at this late stage would cause non-compensable prejudice to the Applicant.

The amendment would require re-opening the trial to address the reverse onus associated with a resulting trust, causing significant delay and emotional prejudice, and fundamentally changing the case the Applicant had to meet.

The parties disputed the costs of previous motions regarding their child's parenting schedule and school enrollment, in which the respondent father was successful.

The applicant mother argued costs should be reduced because the respondent refused to mediate the dispute.

The court found the respondent's refusal to mediate was not unreasonable given the applicant's insistence on including her proposed relocation in the mediation.

Conversely, the court found the applicant acted unreasonably by unilaterally enrolling the child in a new school and withholding parenting time.

The court awarded the respondent his costs on a full recovery basis in the amount of $9,613.48.

Following a motion for temporary parenting orders where the respondent was largely successful, the court determined the costs to be awarded.

The respondent sought $66,070 on a full recovery basis, arguing the applicant engaged in bad faith.

The court found the applicant's conduct was unreasonable, though not in bad faith, and that the respondent beat his offer to settle, entitling him to full recovery from the date of the offer.

After reducing some duplicate dockets, the court fixed costs payable by the applicant to the respondent at $50,000 inclusive of fees, disbursements, and HST.

The parties brought competing motions for temporary parenting time and decision-making authority.

The applicant mother sought sole decision-making and supervised parenting time for the respondent father, alleging an imminent risk of child abduction to Iran.

The respondent father sought equal parenting time and joint decision-making, alleging the applicant was alienating the children.

The court struck the applicant's expert affidavit on Iranian passport law for lack of independence.

The court found no credible risk of abduction and ordered equal parenting time on a week on/week off basis, joint decision-making, and continued a mutual non-removal order.

The respondent's request for an advance on matrimonial home proceeds was dismissed without prejudice.