David K. Sherr

A motion within a Children's Law Reform Act application concerning the permissible response of a domestic court to a possible misinterpretation of the Hague Convention by a foreign court.

The applicant sought orders affirming Ontario's jurisdiction and habitual residence of the child, and ordering the child's return from Georgia.

The respondent did not participate.

The court appointed amicus curiae to assist.

The Georgian courts had found wrongful retention but refused return under Article 13(b) exception.

The court declined to make the requested declarations, finding it lacked jurisdiction to issue binding declarations and that it was inappropriate to opine on issues pending before the European Court of Human Rights.

The proceedings were stayed pending the outcome in the European Court.

The applicant father sought orders affirming Ontario's jurisdiction over custody and access matters for a child wrongfully retained in Georgia by the respondent mother, following dismissal of a Hague Convention application in Georgian courts.

The applicant sought these "chasing orders" to support his application to the European Court of Human Rights.

The court found arguable errors in the Georgian courts' application of the Hague Convention, particularly regarding the Article 13(b) exception, but declined to make the requested orders without further evidence, argument from both parties, and amicus assistance, citing principles of judicial comity and the limited evidentiary foundation before the Ontario court.

The appellant appealed a change order made by the motion judge on June 10, 2016, which modified access arrangements for a seven-year-old child.

The original access order was made following a two-day trial on February 28, 2014.

The motion judge initially granted enhanced overnight access to the father on Monday and Thursday in alternate weeks to address the child's concerns about evening change-overs, but subsequently revised the order to Thursday overnights only in alternate weeks after the mother objected on child support grounds.

The appellant argued the motion judge erred in principle by considering child support implications rather than the best interests of the child.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's revised endorsement, which was intended to address the presenting issue of evening change-overs while maintaining the overall joint custody arrangement established at trial.

Following a successful motion for partition and sale of the matrimonial home, the applicant sought costs on a full indemnity basis.

The respondent, who was self-represented, opposed and sought her own costs.

The court found the applicant was the successful party and entitled to costs under Rule 24(1) of the Family Law Rules.

The court declined to award full indemnity costs, finding the respondent's conduct was not unreasonable and the applicant's offer to settle contained additional terms not granted in the order.

Costs were fixed on a partial indemnity basis at $5,000.

The appellant mother appealed orders determining that Ontario had jurisdiction to deal with custody and access of the parties' child under the Children's Law Reform Act.

The family had moved to Hawaii in 2010, but the child returned to Ontario for the summer.

The Divisional Court found the motion judge erred in concluding the child was habitually resident in Ontario and that the child would suffer serious harm if returned to Hawaii.

The appeal was allowed, and the orders were set aside, as Ontario lacked jurisdiction.

The applicant father brought a motion seeking an order restraining the respondent mother from removing the child from Ontario and disputing the respondent’s claim that Hawaii was the proper jurisdiction for custody and access proceedings.

Concurrent proceedings had been commenced in Hawaii.

Applying ss. 22 and 23 of the Children’s Law Reform Act, the court found that the child was habitually resident in Ontario despite attending school in Hawaii for several years.

Alternatively, the court held that returning the child to Hawaii posed a risk of serious harm given the child’s escalating behaviour and attempts to remain with the father.

The court therefore exercised jurisdiction in Ontario.

The applicant sought temporary spousal support following separation from the respondent after a four-year marriage.

The applicant, who lacks legal immigration status in Canada, sought $2,125 per month and imputation of $103,000 income to the respondent.

The respondent disputed financial dependency and claimed the applicant had undisclosed cash income.

The court found the applicant established a prima facie case for entitlement on both non-compensatory (need) and contractual (sponsorship undertaking) bases.

The court imputed income of $56,000 annually to the respondent based on unreasonable business expense deductions.

Departing from Spousal Support Advisory Guidelines due to basic needs exception and immigration sponsorship circumstances, the court awarded $1,000 per month in temporary spousal support commencing April 1, 2015, with arrears of $4,000.

The respondent father brought a motion to vary child support and reduce arrears accumulated under a final order requiring him to pay $375 per month.

The applicant mother opposed the motion.

The court found that while the father experienced a material change in circumstances by May 2009 (unemployment following layoffs), he was intentionally underemployed from May 2009 through May 2014.

The court imputed an annual income of $41,600 to the father based on his earning capacity as a certified drywall finisher, maintaining his support obligation at $375 per month for the retroactive period.

The court reduced arrears by $5,000 and ordered the father to repay remaining arrears at $500 per month, increasing to $675 per month following the child's adoption by the mother's new partner.