Family and Matrimonial Law

In a custody and access trial involving a young child with autism spectrum disorder, the mother sought sole custody while the father and paternal grandmother sought joint custody with each other and with the mother.

Applying the best interests framework under the Children’s Law Reform Act, the court rejected any general parental preference over a grandparent but held that biological relationship remained one factor among many.

The court found the paternal grandmother’s involvement had been vital to the child’s education and services, but also that her conduct had at times undermined the mother’s parental role.

The mother was made the child’s primary custodian with sole decision-making except for education, which was to be shared jointly with the grandmother; the father was denied joint custody.

The existing residence schedule remained in place, and the father was ordered to pay guideline child support of $40 per month.

On multiple family law motions to change, the court addressed parenting, passport control, child support, and section 7 expenses.

The moving party failed to establish any sufficient basis to vary the existing summer schedule or the primary-residence arrangement for one child, but obtained a limited order for mutual first opportunity for overnight care during the school year.

Applying the appellate framework for special and extraordinary expenses under s. 7 of the Federal Child Support Guidelines, the court held that ordinary school trips, non-competitive activities, and cell phone bills were not extraordinary expenses and varied the order so proper s. 7 expenses would be shared proportionately.

Child support was varied effective August 1, 2014 and prospectively from June 1, 2015, but requests to expunge prior arrears were dismissed.

This corrigendum corrected an earlier family law endorsement released on a motion by the applicant.

The court held that part of the earlier endorsement had been made in error and did not accord with the form of order actually signed.

Pursuant to Rule 25(19) of the Family Law Rules, the court amended paragraph 11 by deleting wording that stated the respondent was incapable of managing her property.

The court further clarified that it had made no determination of incapacity within the meaning of the Substitute Decisions Act, 1992, and confirmed that the signed order remained in full force and effect.

On a motion to change, the respondent sought to vary an existing child support order in a shared parenting arrangement based on the recipient parent's repartnering, alleged underemployment, and the payor's new family obligations.

The court found a material change of circumstances, concluded the recipient parent remained intentionally underemployed, and imputed income of $36,000 under s. 19(a) of the Ontario Child Support Guidelines.

Applying the shared custody analysis under s. 9 and considering the parties' means, needs, and household circumstances, the court reduced support from the prior set-off amount to $347 per month.

Applying the retroactive support framework, the court ordered the variation effective October 1, 2013 and allowed repayment of the resulting overpayment over three years to minimize hardship.

Competing family law motions arose after the death of a spouse during unresolved divorce proceedings involving a challenged marriage contract, equalization, and support claims.

The estate trustee sought security for costs and disclosure, while the surviving spouse sought preservation of former matrimonial home sale proceeds and orders relating to inventory and valuation of property and business interests.

The court held that security for costs was not justified under Rule 24(13) because there was insufficient evidence that the claims were a waste of time or a nuisance, despite concerns about the spouse’s asset transfers and lack of assets in Ontario.

The court instead made detailed disclosure and case-management directions, ordered a business valuator selection process funded from sale proceeds held in trust, and reserved costs.

In this family law costs decision, a corporate respondent sought costs after obtaining dismissal of the application against it on a motion akin to summary judgment.

The court held that the applicant's pleadings disclosed no cause of action against the corporation and that its continued joinder and compelled participation were unreasonable, but also found the corporate respondent overreached by seeking a dismissal that would effectively bar future properly pleaded claims.

Applying the Family Law Rules costs framework, the court treated success on the motions as divided and rejected full recovery.

Partial recovery costs of $9,850 plus HST were awarded, payable within 90 days.

The applicant brought a family law contempt motion alleging breach of prior orders requiring interim support, mortgage and household expense payments, provision of a credit card for gas, and cooperation in listing the matrimonial home for sale.

The court held that the monetary obligations, including the gas credit card arrangement, were payment orders within the meaning of the Family Law Rules and therefore could not be enforced by contempt.

As to the non-monetary provisions relating to sale preparation and listing of the home, the competing affidavit record did not establish wilful breach beyond a reasonable doubt.

The contempt motion was dismissed.

The responding mother opposed a father's motion for leave and motion to change on the basis of repeated non-compliance with prior family court orders, unpaid costs, substantial child support arrears, failure to transfer an RRSP as previously ordered, and inadequate financial disclosure.

The court held that non-payment of costs alone should not necessarily bar access-related proceedings, but found the moving father's broader non-compliance and deficient materials fatal to leave on the financial and support issues.

Leave was dismissed, with permission to reapply upon detailed third-party supported financial disclosure.

The motion to change was stayed for one year pending leave, while limited leave was granted to seek variation of supervised access if supported by recommendations from child protection authorities and a physician.

On a motion to change a temporary custody and access order, the applicant sought permission to relocate the children from Hamilton to Wasaga Beach after securing better full-time employment.

Applying the two-step mobility framework from Gordon v Goertz and s. 29 of the Children’s Law Reform Act, the court found a material change in circumstances and concluded the move was in the children’s best interests.

The responding party relied largely on unsupported allegations already rejected in prior proceedings and offered no compelling evidence that the relocation would harm the children.

The motion was granted, the access exchange location was revised to a half-way point, and the existing order remained temporary.

The moving party sought leave to appeal an interim family law order granting retrospective and ongoing spousal support and dismissing his request for child support and contribution to section 7 expenses.

The court applied the leave test under Rule 62.02(4) and held there was no conflicting authority based on different legal principles, no serious reason to doubt the correctness of the order, and no issue of general importance warranting appellate intervention.

The matters were important to the litigants privately but did not engage the development of the law or the administration of justice.

Leave to appeal was dismissed.

In a child protection matter, the society moved to dismiss the mother’s appeal from a temporary care and custody order on the ground of delay.

The court held that the appellant had failed to comply with Rule 38 of the Family Law Rules by not filing proof that transcripts had been ordered and by not taking timely steps to perfect the appeal.

Applying the usual extension-of-time factors, the court found there was no evidence the appellant had maintained an intention to pursue the appeal, no adequate explanation for the delay, no evidence of merit, and inherent prejudice to the child from continued uncertainty.

The motion was granted and the appeal was dismissed for delay.

In a family trial concerning custody, mobility, access, and child support for a very young child, the court rejected joint custody because the parties lacked the ability to communicate and co-parent effectively.

Sole custody was granted to the mother, and she was permitted to relocate to Edmonton with the child after the court applied the best-interests analysis governing relocation cases.

The court ordered liberal access when the father is physically present in Alberta or the child is in Ontario, with interim access modifications before the move.

Retroactive and ongoing child support were set based on the father's declared and imputed income, and further orders were made respecting special expenses, benefits, life insurance, and passport cooperation.

On an addendum to an earlier family law endorsement, the court considered whether a charge against the former matrimonial home should be amended to capture additional retroactive support arrears accruing between the motion date and the date of decision.

The court accepted the moving party's calculation and increased the charge by two additional monthly support payments, amending the total secured amount to $44,298.00.

The court also reviewed a claimed error in the cost outline but declined to vary the prior costs award.

This was a family costs endorsement following an interim custody motion involving domestic violence allegations, competing claims of success, and a section 30 assessment.

The court held the applicant was substantially successful because the respondent sought to extend a temporary order effectively preserving his sole custody position, while the resulting order instead granted the applicant temporary sole custody.

Applying s. 131 of the Courts of Justice Act and Rule 24 of the Family Law Rules, the court found no basis for elevated costs but awarded partial indemnity costs.

The applicant recovered $9,163.85 inclusive of fees, HST, and disbursements.

This costs endorsement followed family motions concerning interim distribution of net sale proceeds of the matrimonial home, parenting access implementation, termination of a restraining order, and passport release.

The court held that the moving party was substantially successful and entitled to costs on a partial indemnity scale, but substantially reduced the claimed amounts because the parties were self-represented, the hourly rate claimed was unsupported, travel and waiting time were not recoverable, and several disbursements were disallowed.

Applying the general costs principles under s. 131 of the Courts of Justice Act and Rule 57.01, the court fixed a fair and reasonable award at $3,105.60 in fees plus $233.36 in disbursements.

This costs endorsement followed a family law motion in which the applicant sought to set aside a separation agreement and obtain support, equalization, and extensive disclosure relief.

The court found mixed success as against non-party business associates and corporations and ordered no costs between them and the applicant.

As between the spouses, the respondent was the successful party on the omnibus motion, although he consented after submissions to provide additional disclosure relevant to valuation and income analysis.

Applying Rule 24 of the Family Law Rules, the court held that the respondent's disclosure conduct did not rise to the level of unreasonable behaviour disentitling him to costs, but it reduced the quantum having regard to proportionality and the applicant's financial circumstances.

On a motion for summary judgment in a family property dispute between former common law partners, the moving party argued that Quebec, not Ontario, had jurisdiction.

Applying the real and substantial connection framework and forum non conveniens principles, the court found the parties had been ordinarily resident in Quebec during the relationship, but that property in Ontario supplied a sufficient connecting factor for Ontario jurisdiction.

The court further held Ontario was the convenient forum because the litigation had already advanced there, there were assets in Ontario, and restarting in Quebec would impose considerable cost.

The motion was dismissed and the proceeding was ordered to continue in Ontario.

On a family law motion to change, the court varied an earlier parenting and child support order after one child began residing full-time with the father and the parties experienced ongoing conflict over scheduling and special expenses.

The court endorsed consent terms on several issues, adjusted long-weekend exchanges and summer parenting time based on the children’s best interests, and replaced the prior section 7 expense-sharing mechanism with a simpler equal-contribution regime.

Claims for historical arrears of special or extraordinary expenses and for reimbursement of an alleged overpayment were rejected because the evidentiary record did not establish prior consent or entitlement.

The self-represented applicant brought a motion to change a 2003 family law order and a motion to change venue.

The court dismissed the venue motion because the alleged concerns related to judges who regularly sat in Sault Ste.

Marie and no apprehension of bias was alleged against the motion judge.

The court held that the motion to change the order was barred by res judicata because an earlier motion involving the same parties, issue, and evidence had already been dismissed.

The court further observed that, even absent res judicata, the supporting affidavits were outdated and largely bald allegations.

Costs were not fixed in the decision, with further written submissions invited.

On competing family law motions, the court determined interim child support, interim spousal support, a claim for interest on delayed settlement payments, and a claim arising from removal of the responding party from group medical benefits.

The court fixed the moving party's income at $100,000 and the responding party's income at $35,000 for interim purposes, ordered child support for two children and spousal support effective September 1, 2014, and denied a claim for support for one child during July and August 2014 without prejudice to trial.

The court dismissed the interest claim as unsuitable for determination on an interlocutory motion and reserved it to trial.

The court also ordered reimbursement of $648.95 in medical expenses and immediate reinstatement of the responding party to the moving party's benefit plans.