Bonnie C. Oldham

The Attorney General appealed a Superior Court decision that appointed two amici to assist on an appeal challenging the trial judge's appointment of amici in a complex family law custody and access case.

The appeal judge imposed a stay of proceedings conditional on the Attorney General negotiating a mutually acceptable rate of compensation with the appointed amici.

The Court of Appeal allowed the Attorney General's appeal, finding that Criminal Lawyers' Association does not impose an obligation on the Attorney General to negotiate rates with court-appointed amici, and that a stay is only appropriate where amicus assistance is truly essential and no other qualified counsel can be found.

The court set aside the stay and remitted the matter for the appointment of one amicus from counsel willing to accept legal aid rates.

The respondent father brought a motion for security for costs regarding the appellant mother's appeal of a final custody and access order.

The trial judge had granted joint custody with primary residence to the mother, but carved out exclusive decision-making areas for the father and granted him generous unsupervised access.

The mother appealed, alleging bias, misapprehension of evidence, and procedural unfairness regarding the trial judge's appointment of amicus curiae.

The court found the appeal raised no arguable errors of law and merely challenged findings of fact and credibility.

Concluding the appeal was a waste of time, a nuisance, and an abuse of process, and noting the mother's lack of assets in Ontario, the court ordered her to post $25,000 in security for costs.

This case involves a divorce trial addressing spousal support, child support, business valuation, equalization of family property, and various financial adjustments.

The parties separated after 18.5 years of marriage.

The court granted the divorce, imputed an income of $35,000 per annum to the Applicant for spousal support calculations, and ordered spousal support to continue for a limited period, with a portion payable as a lump sum.

Child support obligations were adjusted based on the children's enrollment status and residency.

The court valued the parties' HVAC business at $104,000, accepting the Respondent's expert's valuation due to local market risks and post-separation business volatility.

After equalization and numerous financial adjustments for overpayments, joint debts, and shareholder loans, the Applicant was found to owe the Respondent $114,298.22.

The Attorney General of Ontario (AG) brought a motion to set aside the court's appointment of two amici curiae for an appeal, arguing that the court exceeded its jurisdiction and that the AG's policy of paying only legal aid rates should apply.

The court denied the AG's motion, finding that the AG's refusal to negotiate reasonable compensation with the appointed amici undermined the court's judicial role and appointment power.

The court emphasized the need for a flexible approach to amicus remuneration, especially given the unique qualifications and prior involvement of the appointed amici in this complex constitutional and jurisdictional appeal.

The underlying appeal was stayed until the AG and amici could agree on compensation.

This is the first known case in Canada wherein a trial judge in a family law proceeding appointed amicus curiae to represent both litigant parents and to assist the court on issues impacting the best interests of children.

The Attorney General brought a motion to set aside the amicus orders, arguing the court lacked jurisdiction and misapprehended the law of amicus curiae.

The trial judge appointed amicus for the mother due to her emotional instability, pattern of dismissing counsel, and inability to self-represent in a complex, high-conflict family law matter.

The trial judge subsequently appointed amicus for the father when his counsel sought to withdraw due to unpaid accounts and inability to continue.

The court dismissed the Attorney General's motion, finding the trial judge had jurisdiction to make the orders in the exceptional and unusual circumstances of the case.

The applicants sought to set aside a vesting order that removed a trust company and a deceased partner from title to an island property and vested title solely in the respondent.

They argued the order was made without notice and that the Statute of Frauds barred reliance on an alleged oral agreement transferring the property.

The court held that once a vesting order is registered on title, its attributes as a court order are spent and it cannot be set aside under Rule 38.11.

Treating the application as one for rectification of title under the Land Titles Act, the court found sufficient evidence of part performance supporting an oral agreement transferring the deceased partner’s interest.

The evidence did not establish that the applicants were entitled to rectification of the register.

This is a costs decision following the dismissal of the respondent's motion to vary child support.

The respondent sought to reduce his child support obligations based on a claimed reduction in annual income.

The court found that the respondent had not met the threshold for variation as set out in paragraph 6.4 of the Amended Separation Agreement, which required a drastic change in either parent's income.

The applicant was awarded partial indemnity costs in the amount of $3,000, payable at $250 per month commencing August 1, 2012, with the entire amount becoming immediately due if the respondent defaulted on any support or costs payment by more than 30 days.

The respondent father sought to vary a child support order based on a claimed decrease in his annual income from self-employment as a real estate broker.

The original separation agreement contained a threshold clause requiring a "drastic change" in either parent's income as the sole basis for variation.

The court found that the respondent failed to meet the threshold test and dismissed the motion.

The court held that the respondent, as a self-employed person, bore the onus of clearly demonstrating the basis of his net income through comprehensive documentation, which he failed to do.

The court was skeptical of the respondent's reported income reduction given the potential for income allocation among related individuals in the real estate business.