Engelking

The mother brought a motion for summary judgment to dismiss the children's aid society's protection application regarding her infant child.

The society alleged the child was in need of protection due to the father's history of substance abuse, domestic violence, and a prior judicial finding that he likely sexually abused another child.

The court found no triable issue regarding physical or emotional harm, as the mother had adequately cared for the child.

However, applying the cautionary approach to summary judgment in child protection matters, the court concluded there was a genuine issue requiring a trial regarding whether the mother could protect the child from the risk of sexual harm posed by the father.

The motion was dismissed.

The applicant brought a motion for temporary sole custody, child support based on an imputed income of $550,000, and retroactive support.

The respondent opposed the imputed income, claiming hardship, and sought specified overnight parenting time.

The court declined to impute income at this stage, instead basing temporary child support on the respondent's 2018 income of $492,153.

The court ordered retroactive support adjustments, declined to make a temporary custody order, and granted the respondent overnight parenting time every second weekend.

The respondent father brought a motion to set aside a noting in default and a final uncontested divorce order.

The applicant mother opposed the motion.

The court applied the five-part test for setting aside a final order.

While the father acted promptly, the court found he had no plausible excuse for failing to participate in the proceedings and failed to establish an arguable defence on the merits regarding child support, section 7 expenses, spousal support, or equalization.

The court found any prejudice regarding parenting issues could be addressed through a Motion to Change.

The motion to set aside was dismissed.

The applicant brought a motion for temporary child and spousal support.

The respondent argued the applicant was intentionally underemployed and sought to impute her income at $50,000.

The court found the applicant had established a prima facie case for spousal support but agreed she was intentionally underemployed, imputing her income at $30,000.

The respondent's income was determined to be $120,000.

The court ordered set-off child support of $1,257 per month and spousal support of $1,587 per month based on the mid-range of the Spousal Support Advisory Guidelines for a shared parenting arrangement.

The Children's Aid Society brought a summary judgment motion seeking a finding that the child was in need of protection and an order placing her in the custody of her maternal aunt.

The mother opposed the motion, arguing that a trial was required, while the father and the child consented.

The court found that the mother had experienced a severe mental health breakdown requiring extended hospitalization, which profoundly affected the child.

Applying the principles for summary judgment in child protection cases, the court determined there was no genuine issue requiring a trial.

The court found the child in need of protection and, giving significant weight to the child's steadfast wish to live with her aunt, granted custody to the maternal aunt as being in the child's best interests.

The applicant mother brought an urgent motion seeking the return of the parties' 11-year-old child to her primary care and an order that the child attend school in-person.

The respondent father, who had temporarily assumed primary care at the onset of the COVID-19 pandemic, brought a cross-motion seeking primary residence and an order for virtual schooling, citing his and his partner's diabetes as risk factors.

The court found that the father had engaged in self-help by refusing to return the child.

Applying recent jurisprudence on COVID-19 school attendance, the court held that the benefits of in-person schooling for the child, who has learning disabilities and an Individual Education Plan, outweighed the unquantified health risks to the father's household.

The mother's motion was granted.

The applicant father brought an urgent motion for joint shared custody and equal parenting time of the parties' nine-year-old twins.

The respondent mother opposed, seeking an order for supervised access without overnights, citing recent allegations of domestic violence for which the father was criminally charged.

The court found no evidence of exceptional circumstances requiring supervised access, noting the Children's Aid Society had closed its file and the risk appeared to have dissipated after separation.

The court declined to order a week-on/week-off schedule due to insufficient evidence but granted the father unsupervised parenting time on alternating weekends and Wednesday evenings.

Following the death of the respondent, the applicant brought a motion for an accounting and the return of the remaining balance of a $15,000 advance previously ordered to be paid for the respondent's legal costs.

The respondent's counsel brought a cross-motion to be removed as solicitor of record, citing the loss of an instructing client and concerns over solicitor-client confidentiality regarding the accounting.

The court granted both motions, ordering the counsel to provide an accounting with permitted redactions for privilege, return any surplus funds, and removing him as counsel of record.

The applicant mother brought a motion for temporary sole custody to enroll the child in an Ontario school, while the respondent father brought a cross-motion arguing the Ontario court lacked jurisdiction because the child was habitually resident in Quebec.

The court applied section 22 of the Children's Law Reform Act and found that the child's habitual residence remained in Quebec, meaning Ontario lacked jurisdiction over the main application.

However, pursuant to section 40(b) of the Act, the court granted the mother temporary sole custody to allow her to make important decisions, such as school enrollment, pending the resolution of the jurisdictional and paternity proceedings in Quebec.

The applicant brought a motion to change seeking to terminate his spousal support obligation following his involuntary termination from employment.

The respondent sought a retroactive increase for 2018 and ongoing support based on imputed income.

The court found a material change in circumstances but declined to retroactively increase support for 2018, as the respondent's needs were being met.

For 2019, support was reduced based on the applicant's actual income.

The court refused to terminate support for 2020 onwards, instead imputing an income of $40,000 to the applicant given his ongoing obligation and capacity to work in lower-paying jobs.

The mother sought an adjournment of a care and custody hearing to attend a treatment program.

The Society consented to the adjournment but requested that the existing temporary without prejudice order be converted to a with prejudice order, given it had been in place for over a year.

The court declined to convert the order, finding that the case had been on a particular path until recent events, and emphasizing the remedial nature of the CYFSA regarding First Nations, Inuit, and Métis children, which supported allowing the mother to argue her motion under the without prejudice test.

The parties separated in 2016, after which the mother severely restricted the father's access to their two children.

The father sought sole custody and the imputation of income to the mother, alleging parental alienation and intentional underemployment.

The court found that the mother had alienated the children from the father and was intentionally underemployed by choosing to work only part-time night shifts.

The court imputed an annual income of $50,000 to the mother and ordered a temporary schedule of increased access for the father, deferring a final decision on custody for four months to monitor the mother's compliance and the progress of reunification counselling.

The applicant was largely successful at a trial on a motion to change child support and sought costs of over $193,000.

The respondent argued the fees were excessive and disproportionate.

The court considered the parties' offers to settle, finding the applicant's offers triggered full recovery cost consequences.

After adjusting the applicant's counsel's hourly rate and hours claimed to be more proportional to the respondent's, the court fixed costs at $130,000.

The court also ordered that the costs award is enforceable by the Family Responsibility Office as it relates entirely to child support.

The applicant brought a Motion to Change seeking to reduce his spousal support obligations due to a material change in circumstances following his involuntary retirement and subsequent re-employment at a lower salary.

The respondent conceded the material change, leaving only the quantum and duration of support in issue.

The court varied the spousal support to $3,000 per month for an indefinite period, effective January 1, 2019, finding this amount appropriately reflected the parties' original separation agreement which set support near the high end of the Spousal Support Advisory Guidelines range.

The applicant father sought joint custody and increasing parenting time of his son, while the respondent mother sought sole custody and limited, supervised access.

The mother had tightly controlled the father's access since birth, requiring it to be supervised at a centre despite no safety concerns.

The court found the mother's gatekeeping behaviour detrimental to the father-son relationship.

The court ordered joint custody, with primary residence to the mother, and a schedule of increasing unsupervised parenting time for the father, including overnights.

The father was also ordered to pay child support based on an imputed income of $40,000.

The applicant father brought a motion seeking to find the respondent mother in contempt of court for failing to comply with multiple court orders requiring her to facilitate the return of their two children from Ethiopia to Ottawa.

The mother had left the children with their maternal grandmother in Ethiopia and returned to Canada alone.

The grandmother subsequently refused to release the children to a court-ordered escort.

The court found that while the mother failed to comply with several provisions of the orders, her disobedience could not be proven beyond a reasonable doubt to be deliberate and wilful in all instances, and the court exercised its discretion to decline making contempt findings at this time.

However, the court issued a new temporary order requiring the mother to travel to Ethiopia at her own expense to retrieve the children and bring them to Ottawa by February 28, 2020, failing which she may be held in contempt.

The moving party father brought a motion for a temporary order to increase parenting time with the parties' youngest child, to have the child in his daytime care during his parental leave, and to change the older children's school.

The responding party mother brought a cross-motion for the children to remain at their current school, for retroactive child support, and for reimbursement of expenses.

The court dismissed the father's motion regarding parenting time and daytime care, finding it was not in the youngest child's best interests to disrupt her routine.

The court ordered the older children to attend the French Catholic school they were accustomed to.

The mother's request for retroactive child support was deferred to trial, but the father was ordered to reimburse her for outstanding summer camp and daycare expenses.

No costs were awarded.

The parties were married under Sharia Law in 2007 but never registered the marriage in Ontario.

After separation, the applicant sought a declaration of a valid marriage, equalization, or alternatively, damages for unjust enrichment, as well as child and spousal support.

The court found the marriage invalid under Ontario law because the parties did not intend to comply with the Marriage Act.

However, the court found the respondent was unjustly enriched by the applicant's assumption of domestic and childcare duties, awarding her a monetary remedy of $26,785.

The court also imputed income to the respondent for travel benefits received and ordered him to pay retroactive and ongoing child and spousal support.

The moving party father brought a motion to change a 2008 separation agreement, seeking to terminate child support for three adult children, terminate spousal support, and rescind arrears.

The responding party mother cross-moved for retroactive adjustments based on imputed income.

The court terminated child support for the two oldest children as of their 23rd birthdays, as agreed in the separation agreement, and ordered table support for the youngest child until her 23rd birthday.

The court declined to terminate spousal support immediately, ordering it to continue until 13 years from the date of the agreement.

The court declined to impute income to the father and refused to rescind his arrears, finding he had no reasonable excuse for unilaterally reducing support payments without formal variation.

The applicant mother brought a motion to change a 2013 final order to reduce her child support obligations effective January 1, 2016, due to a significant reduction in her income caused by mental health challenges and the sale of two of her dental practices.

The respondent father sought retroactive child support adjustments for 2013, 2014, and 2015, arguing the mother's income was higher than previously disclosed.

The court dismissed the father's claim for retroactive support, finding no material change in circumstances prior to 2016 and no blameworthy conduct by the mother.

The court determined the mother's income for support purposes from 2016 onwards by excluding non-recurring capital gains from the sale of her practices and applying a working capital analysis to her corporate income, resulting in a reduction of her ongoing child support obligations.