Family and Matrimonial Law

This decision addresses a child protection application under the Child, Youth and Family Services Act, 2017, involving two young children found to be in need of protection due to risks of physical harm and exposure to family violence.

The court carefully analyzed the mental health challenges of the mother, the domestic violence between the parents, and the suitability of placement with the maternal aunt.

The court found the mother lacked insight and compliance with treatment, and the father had a history of family violence.

The children were placed in the care of the maternal aunt with supervision by the Children’s Aid Society of Toronto, and access orders were made for the parents with conditions.

The judgment also provides a detailed roadmap for the parents to address the protection concerns and work towards reunification.

The Family Responsibility Office sought a warrant of committal against Orrett Fagan for non-payment of child support arrears and ongoing support, pursuant to a default order.

Fagan cross-moved to set aside or vary the default order, citing health issues and reduced income.

The court considered the factors for setting aside a default order under Rule 25(19) of the Family Law Rules, finding Fagan had an arguable defence but had not acted promptly and had a history of non-compliance.

The court suspended the committal order pending further proceedings, set new payment terms, and provided for future review and possible committal if Fagan failed to comply.

The Children and Family Services for York Region brought a Status Review Application concerning two young children, E. and J., who were removed from their parents' care due to the mother's severe alcohol misuse and the father's schizophrenia and lack of parenting skills.

The Society sought final custody orders for the maternal grandmother (for E.) and the paternal aunt (for J.), which were granted.

The court found the children continued to be in need of protection and that permanent placements with the caregivers were in their best interests, emphasizing stability and continuity of care.

While the parents' plans for return were deemed unviable, the court made temporary access orders and adjourned the access portion of the trial to allow parties to develop a more workable plan, with conditions imposed on parents to address their issues and improve their support networks.

The applicant father sought a temporary order to vary a final parenting order, requesting a change in the children's primary residence from the respondent mother to himself.

The Office of the Children's Lawyer supported the father's motion, citing chronic dysfunction and conflict in the mother's household impacting the children's well-being.

The court applied the two-stage test for varying parenting orders, including the stringent threshold for temporary variations of final orders, and found a material change in circumstances.

Giving significant weight to the children's clear and consistent views, the court determined that changing primary residence to the father was in the children's best interests to address the intolerable situation and prevent further harm.

The Father sought an urgent ex parte motion to prevent the Mother from removing the child, alleging passport forgery and intent to abscond.

The Mother brought a cross-motion for support.

The court found the Father's allegations false and his income evidence misleading, constituting bad faith under Family Law Rule 24(8).

The Mother was largely successful, obtaining a non-removal order (by consent, from Ontario, not just Toronto), and interim child and spousal support.

The court awarded the Mother $17,000 in costs, finding the Father's conduct warranted sanctions.

K.R. appealed an order finding her in contempt of court for allegedly violating a temporary order concerning supervised visits for her child with the father.

The original order granted Valoris discretion to remove supervision if no longer necessary.

K.R. refused to allow visits at the father's home, insisting they remain at Valoris's office due to concerns about the child's behaviour.

The Court of Appeal found the original order insufficiently clear regarding visit location or K.R.'s obligation to support a gradual transition plan.

It also noted that Valoris had not yet made a final decision to remove supervision.

The court emphasized the need for clear orders in contempt proceedings and the importance of considering the child's best interests and less severe remedies in family law disputes.

The appeal was allowed, the contempt order quashed, and the contempt motion dismissed.

The applicant, Joan Thomson, sought spousal support and a declaration of unjust enrichment.

The respondent, Thomas Victor Delmoro, sought child support.

The parties, who cohabited for 27 years and have two children, separated in 2014.

The applicant failed to comply with multiple court orders for disclosure and did not attend trial, leading to the dismissal of her claims.

The court imputed an income of $60,000 per year to the applicant for child support purposes, based on her earning history and failure to provide financial information or explanation for unemployment.

Retroactive child support was ordered from April 1, 2014, and ongoing support for the remaining child, along with a contribution to Section 7 expenses.

The Children's Aid Society of Algoma brought a motion seeking a determination under s.90(2)(b) and s.2(4) of the Child, Youth and Family Services Act (CYFSA) as to whether a one-year-old child (L.A.) is a First Nation child and, if so, whether Batchewana First Nation should be added as a party respondent.

The child's mother stated the child was not Native and not eligible for band registration.

The father indicated he was pursuing Native Status for himself and had a paternal grandfather who was a member of Batchewana band.

The court initially found the child was not a First Nation child but reopened the motion for additional evidence.

The court ultimately found the child was a First Nation child under the CYFSA based on information demonstrating a connection to Batchewana band through the father's eligibility for membership and the paternal grandfather's band membership.

Batchewana First Nation band representative was added as a party respondent.

In a child protection matter, the paternal aunt sought costs on a substantial indemnity basis against the Children's Aid Society, alleging that the Society acted unreasonably and in bad faith by failing to support her custody plan earlier than January 2018.

The Society had initially pursued a supervision order with the children remaining in the aunt's care, but later amended its application to seek a permanent custody order under section 57.1 of the Child and Family Services Act.

The court dismissed the costs claim, finding that the Society did not act in a patently unfair or indefensible manner and that it properly fulfilled its statutory mandate to assess competing plans fairly and with an open mind.

The respondent brought a claim for unjust enrichment to recover money she paid to acquire and renovate a house registered in the appellants' names.

The motion judge granted summary judgment in favour of the respondent, finding unjust enrichment and awarding her $221,914.11.

The appellants appealed, arguing that summary judgment was inappropriate given conflicting evidence regarding the parties' agreement and that the motion judge's reasons were insufficient.

The Court of Appeal allowed the appeal and set aside the judgment, finding that the motion judge failed to adequately explain how she resolved conflicts in evidence, made insufficient credibility findings, and failed to properly analyze the equities and mutual benefits exchanged between the parties.

The applicant sought leave to appeal a decision by Snowie J. which imposed orders due to the applicant's late expert report.

The original decision imposed conditions for filing the late report, including costs and potential trial adjournment.

The applicant argued procedural unfairness, exceeding jurisdiction, and mischaracterization of costs as interim disbursements.

The court denied leave to appeal, finding no conflicting decisions, no reason to doubt the correctness of the order, and no procedural unfairness or bias.

The court clarified that the costs ordered were for "costs thrown away" due to non-compliance, not interim disbursements, and that Snowie J. acted within her authority under the Family Law Rules.

The respondent wife brought a motion to stay the applicant husband's divorce application in Ontario, arguing that England was a more appropriate forum for the divorce proceedings, where she had also initiated an application.

The husband sought dismissal of the wife's motion and for his Ontario application to proceed.

The court found that the wife failed to discharge the onus of demonstrating that England was a more appropriate forum, noting that the parties were married in Ontario, had their only common residence and matrimonial home there, and the husband resided and had assets in Ontario.

The court dismissed the wife's motion for a stay, allowed the husband's application to proceed, and provided directions for future service and filing, awarding costs to the husband.

The Mississaugas of the New Credit Band Council brought a motion for release of records held by Waterloo and Brant Family and Children Services relating to the current caregiver and potential alternative caregivers in a child protection proceeding.

The motion arose in the context of an upcoming trial involving competing plans for the child's placement.

The court established a two-stage test for disclosure of kin records, requiring the moving party to first demonstrate on a balance of probabilities that the records are likely relevant, followed by judicial review to weigh probative value against privacy interests and public policy considerations.

The applicant mother sought child support from the respondent father for their 8-year-old child pursuant to the Interjurisdictional Support Orders Act, 2002 (Ontario).

The mother sought retroactive support from May 1, 2014.

The father requested an earlier start date of January 1, 2014 and sought credit for payments made in 2014.

The court determined the appropriate start date, imputed income for 2015 based on the father's 2014 earnings due to his voluntary job departure, and calculated arrears.

The court ordered ongoing support based on the father's current income with a repayment plan for arrears.

A custody and access trial involving a child born to unmarried parents who subsequently married and separated.

The applicant mother, facing deportation to St. Vincent due to illegal immigration status, sought sole custody and permission to remove the child from Canada.

The respondent father sought sole or joint custody with a non-removal order.

The court found the mother's evidence lacked credibility due to her illegal status and inconsistent testimony.

The court ordered joint custody with primary residence to the mother while she remains in Canada, with extensive access to the father.

If deported, sole custody transfers to the father.

The court imposed a non-removal order preventing the mother from taking the child out of Ontario without court order, while permitting the father to travel freely with the child.

The Children's Aid Society of the Region of Peel sought Crown wardship of two children (Am, age 10, and Az, age 2) following the death of their older sibling M from malnutrition while in the respondents' care.

The respondents were convicted of manslaughter in M's death.

The Society apprehended Am in 2011 after discovering vitamin D and B12 deficiencies, and Az at birth in 2013.

The respondents maintained they had done nothing wrong and resisted the Society's efforts to address nutritional concerns, citing religious beliefs and conspiracy theories.

The court found both children in need of protection due to risk of physical harm from parental neglect and lack of adequate nutrition.

The court ordered Crown wardship for both children with no access to the respondents, finding that the respondents had not changed their dietary practices, profoundly mistrusted the Society, and could not cooperate in a meaningful way to ensure the children's safety.

A costs decision following a three-day family law trial concerning the primary residence of a child.

The applicant mother was successful in obtaining primary residence of the child in Ottawa, while the respondent father sought to retain custody in Trenton.

Both parties were members of the military.

The court awarded costs to the successful mother, but at a reduced amount due to the complexity and importance of the mobility issue, the absence of a formal settlement offer from the mother, and the reasonableness of both parties' conduct throughout the proceedings.

The respondent father brought three motions to set aside, review, and/or vary a final order made by Justice O'Connell dated August 9, 2014, which awarded sole custody to the mother, supervised access to the father, and imputed income of $50,000 for child support purposes.

The applicant mother brought a cross-motion seeking to amend the order to express the father's contribution to daycare as a percentage and to make cost orders enforceable by the Family Responsibility Office.

The court dismissed all of the father's motions, finding no basis to set aside the order, no material change in circumstances for custody and access, and that the father had failed to comply with disclosure obligations.

The court upheld the imputed income of $50,000, finding the father was intentionally underemployed.

The court granted the mother's request to make certain cost orders enforceable by FRO but dismissed her request to amend the daycare contribution to a percentage.

The court also imposed restrictions on the father's ability to bring further motions pending compliance with support and cost payment obligations.

The Children's Aid Society brought a motion for summary judgment seeking statutory findings that two children were in need of protection, and that they be made wards of the Crown for the purpose of adoption.

The respondent mother contested the motion and sought return of the children to her care pursuant to a supervision order.

The respondent father sought an adjournment.

The court found that the children were in need of protection based on the chronically poor condition of the mother's home, her inability to consistently meet the children's needs, and findings from a parenting capacity assessment indicating developmental delay and personality features that prevented adequate parenting.

The court granted the Society's motion, made the children Crown wards, and ordered supervised access for the mother at least once every two months.

The respondent sought costs in the amount of $1,412.50 for time spent arguing a contested adjournment of a case conference scheduled for March 30, 2012.

The respondent contended that the applicant's counsel provided insufficient notice of his unavailability due to vacation and that the case conference should have proceeded.

The court declined to award costs against the applicant's counsel personally or against the applicant, finding that although an error in judgment occurred, the case conference was not a wasted appearance as temporary access minutes were negotiated and executed.

The court held that each party should bear their own costs.