Cheryl A. Hodgkin

In a supplementary judgment following a family law trial, the court determined child and spousal support.

The applicant sought child support and the respondent sought spousal support.

The central issue was determining the respondent's income, as she had been a stay-at-home parent and received extensive, ongoing financial gifts from her parents throughout the marriage and post-separation.

The court imputed an annual income of $80,000 to the respondent based on her underemployment and the consistent, substantial gifts from her parents that covered housing, vehicles, and living expenses.

The respondent was ordered to pay child support based on this imputed income, and was awarded spousal support at the low end of the Guidelines ($1,000 per month) for seven years.

The appellant brought a motion for leave to appeal the order of Raikes J. dated July 5, 2023.

The Divisional Court dismissed the motion for leave to appeal.

The applicant mother brought a motion for primary parenting time, sole decision-making, and child support.

The respondent father, who was self-represented, did not appear and argued that a prior separation agreement relieved him of child support and financial disclosure obligations.

The court rejected this argument, emphasizing that child support is the right of the child.

Due to the respondent's persistent failure to pay support and disclose financials, the court ordered lump sum retroactive and ongoing child support and section 7 expenses, to be secured and paid via a mandatory withdrawal from the respondent's RRSPs.

The parties engaged in high-conflict family litigation over custody and access of their two young children.

The applicant mother sought sole custody and restricted access without overnights, while the respondent father sought joint custody and regular overnight access.

The court awarded sole custody to the mother due to the parties' inability to communicate cooperatively, but granted the father's request for overnight access, implementing a gradual transition plan.

The court also excluded surreptitious recordings made by the mother, declined to include the father's RRSP withdrawals in his income for child support, and dismissed the mother's motion to adduce fresh post-trial evidence.

The respondents sought costs after successfully opposing a motion by the Windsor-Essex Children's Aid Society to stay an order of the Child and Family Services Review Board.

The Society argued that as a government agency, it should not be liable for costs absent a finding of bad faith, relying on Rule 24(2) of the Family Law Rules.

The Divisional Court held that while there is no presumption of costs against a government agency, Rule 24(3) preserves the court's discretion to award them.

Finding that the respondents were put to significant expense opposing a strategic litigation decision by the Society, the court awarded costs to the respondents on a partial indemnity basis.

The applicant father brought an urgent motion for parenting time after the parties separated and the respondent mother allegedly denied him access to their six-year-old child.

The court considered whether the matter met the definition of urgency under the Chief Justice's Notice to the Profession regarding the COVID-19 pandemic court suspension.

The triage judge concluded the matter met the definition of urgency because it involved an allegation of wrongful retention of a child, and ordered the motion to proceed on the limited issue of access.

The applicant sought leave to bring an urgent motion for exclusive possession of the matrimonial home during the COVID-19 pandemic, citing health concerns due to his cardiac issues and the respondent's employment in long-term care facilities, as well as alleged violence and intentional coughing.

The court, applying the Chief Justice's Notice to the Profession regarding urgent family law matters, determined that the request for exclusive possession related to the safety of a party met the definition of urgency.

Leave was granted for the applicant to proceed with the motion, with specific timelines for filing affidavits and scheduling a conference call hearing.

The mother brought a motion to change seeking ongoing spousal support and child support for two children, including a contribution to the adult daughter's student loan debt.

The court reduced and ordered a termination date for spousal support, noting the mother's ability to increase her income and the father's post-separation efforts.

The court dismissed the claim for the adult daughter's student debt, finding she was employed full-time, had not consulted the father before incurring the debt, and was inappropriately recruited by the mother to support the claim.

Child support for the minor son was updated based on the father's income.

The applicant sought a review of a single judge's decision refusing a stay of an order setting a settlement conference date and refusing an extension of time to perfect his appeal.

The applicant argued the motion judge erred in considering the court's lack of jurisdiction, asserting such a decision required a full panel.

The Court of Appeal dismissed the motion, finding no error in the motion judge's consideration of jurisdiction as a factor in exercising discretion to refuse the stay and extension of time.

The appellant appealed an order of the Superior Court of Justice denying leave to appeal to the Divisional Court.

The Court of Appeal quashed the appeal, holding that while there is limited authority to review a decision denying leave to appeal to the Divisional Court, that authority lies with the Divisional Court, not with the Court of Appeal for Ontario.

The court declined to award costs, noting that the respondent had supported hearing the appeal and the offer made was relevant to the merits of the underlying issues rather than to costs.

The applicant mother brought a motion for summary judgment to dismiss the respondent father's motion to change existing custody and access orders.

The father alleged material changes in circumstances, including parental alienation, the mother's refusal to continue counselling for the children, and non-compliance with access orders.

The court found no direct evidence of alienating behaviour, no evidence that counselling was still required or recommended by professionals, and that the alleged access infractions were not sufficiently significant to constitute a material change in circumstances affecting the children's best interests.

The applicant's motion for summary judgment was granted, and the respondent's motion to change was dismissed.

This is a costs decision following a trial on child support and spousal support issues.

The applicant sought costs of $115,000.00 all inclusive, while the respondent submitted that costs should be fixed at $18,000.00 with a $3,000.00 set-off.

The trial resulted in an order for ongoing child support based on structured settlement annuity payments, dismissal of the applicant's retroactive child support claim, and dismissal of the respondent's request to terminate spousal support.

The court found the applicant was substantially more successful on the significant issues and awarded costs of $47,000.00 inclusive, payable at $1,200.00 per month commencing July 1, 2018.

A support payor who became an undischarged bankrupt challenged the jurisdiction of the Ontario Court of Justice to conduct a default hearing on child support arrears.

The payor argued that bankruptcy matters fall exclusively within the Superior Court of Justice's jurisdiction and that the stay of proceedings under the Bankruptcy and Insolvency Act prevented the default hearing from proceeding.

The court held that a default hearing is a family law enforcement procedure, not a bankruptcy matter, and that support claims are not stayed by bankruptcy.

The court dismissed the jurisdictional challenge and confirmed its authority to conduct the default hearing.

The applicant sought enforcement of a separation agreement and child support for two adult children, while the respondent sought to set aside the spousal support provisions and terminate his support obligations.

The court found that structured settlement annuity payments constitute income for child support purposes and should be grossed-up for tax purposes.

The court awarded table amount child support for both children, including an adult child enrolled in post-secondary education.

The court rejected the respondent's arguments to set aside the spousal support provisions and found no material change in circumstances warranting termination.

Retroactive child support arrears were rescinded based on the parties' oral agreement and the DBS factors.

The parties executed a separation agreement in 2000, which the responding party filed with the Ontario Court of Justice in 2002.

In 2011, the responding party commenced proceedings in the Superior Court of Justice seeking compliance and child support under the agreement.

The moving party brought a motion to dismiss the claims for lack of jurisdiction.

The court held that under s. 35 of the Family Law Act, once a separation agreement is filed with the Ontario Court of Justice, it becomes an order of that court and the Superior Court lacks jurisdiction to vary or enforce it.

The court ordered the entire proceeding transferred to the Ontario Court of Justice to avoid a multiplicity of proceedings.

The appellant appealed a judgment dealing with spousal support and ancillary orders after his pleadings were struck at trial.

The Court of Appeal upheld the spousal support amount of $1,515 per month, finding the appellant had notice of the amount in issue despite the Notice of Application claiming less.

The Court also upheld the trial judge's decisions not to time-limit support, to defer review for three years, and to change access drop-off points.

The appeal was allowed only to set aside the order regarding pension benefits due to a lack of evidence, and to correct a typographical error in the support amount.