Esther L. Lenkinski

The respondent brought a motion to set aside an ex parte custody order granting the applicant temporary sole custody of one child and access to another, and to dismiss the proceeding for lack of jurisdiction.

The court held that the applicant had failed to provide full and fair disclosure when obtaining the ex parte order and that the circumstances required by the Family Law Rules for a motion without notice were not established.

The order was therefore set aside.

The court further considered jurisdiction under s. 22 of the Children’s Law Reform Act and found insufficient evidence on the motion record to determine the child’s habitual residence due to conflicting affidavit evidence.

The court ordered a trial of the issue of jurisdiction regarding custody and access.

Following a consent order resolving parenting issues, the court addressed costs arising from competing motions and an adjournment.

The moving party had short‑served extensive motion materials seeking contempt findings, parenting changes, and financial relief.

The responding party argued that the motion was unnecessary and that the eventual parenting arrangement largely reflected the responding party’s earlier offer to settle.

Applying the Family Law Rules, the court found the responding party to be the more successful party and concluded the motion could have been avoided through proper scheduling and conference procedures.

The court ordered costs in favour of the responding party.

The applicant mother brought an urgent motion regarding the schooling of the parties’ children, seeking an order that the twins attend a public school rather than a private Jewish day school preferred by the respondent father.

The court considered the best interests of the children under s. 16 of the Divorce Act and s. 24 of the Children’s Law Reform Act.

Relevant factors included the children’s existing familiarity with the public school, proximity to the primary residence, social connections in the neighbourhood, travel logistics, financial feasibility of private school, and potential impact on the mother’s employment at the private school.

The court found no evidence that the children’s Jewish education would suffer if they attended the public school supplemented by extracurricular religious instruction.

On balance, the court concluded that attending the public school for Grade 1 better served the twins’ best interests.

The mother, while pregnant, left Ontario for California where she gave birth to the child and intended to remain permanently.

The father brought an application in Ontario for shared custody, and the motion judge assumed jurisdiction by exercising the court's parens patriae power, finding a legislative gap in the Children's Law Reform Act since the child was not habitually resident in Ontario.

The Court of Appeal allowed the mother's appeal, holding that the child falling outside the statutory definition of habitual residence was a matter of legislative design, not a gap.

Furthermore, the court held there was no basis to exercise parens patriae jurisdiction as there was no evidence the child required the Ontario court's protection, especially given the ongoing proceedings in California.

A father brought an application under the Children’s Law Reform Act seeking shared custody of a newborn child born in California after the mother travelled there late in pregnancy.

The primary issue on the motion was whether Ontario had jurisdiction over custody despite the child never residing in Ontario.

The court found that both parents were habitually resident in Ontario before the mother travelled to California and that the mother’s intention to relocate permanently to California arose only after the child’s birth.

Invoking the court’s parens patriae jurisdiction to address a gap in the statutory definition of habitual residence, the court held that Ontario had jurisdiction to determine custody.

The court also held that the respondent’s earlier Notice of Constitutional Question constituted attornment to the jurisdiction of the Ontario court.

In an endorsement regarding costs for an appeal, cross-appeal, and related motions, the Court of Appeal found the bills of costs filed by both counsel to be exorbitant and unhelpful.

The court made a single award of costs, fixing them at $7,000 inclusive of disbursements and GST, payable to the respondent.

The parties lived in a common law relationship for seven years, during which the respondent performed extensive maintenance and renovation work on properties owned by the appellant.

After separation, the trial judge awarded the respondent compensation for unjust enrichment regarding one property and a 50 percent resulting trust interest in the profits from the sale of another property based on a joint venture agreement.

The Court of Appeal dismissed the appellant's appeal and the respondent's cross-appeal, finding no palpable and overriding error in the trial judge's factual findings, but varied the prejudgment interest calculation for the resulting trust property to run from the date of its sale.

The parties divorced in 1987, with the respondent ordered to pay spousal and child support.

In 1992, the respondent's income dropped significantly when he began a medical residency, and a variation order terminated spousal support on consent.

Years later, after the respondent's income increased substantially, the appellant applied to vary the 1992 order to reinstate spousal support.

The motion judge dismissed the application, relying on previous appellate authority holding that a dismissed support claim cannot be varied.

The Court of Appeal allowed the appeal, overruling its previous decisions in light of the 1997 amendments to the Divorce Act.

The Court held that the expansive language of the amended Act provides courts with the jurisdiction to vary an earlier dismissal of spousal support.

The self-represented moving party sought an extension of time and leave to appeal an interlocutory child support order to the Divisional Court.

The court noted that the moving party had previously attempted to appeal to the Court of Appeal and was advised he was in the wrong court.

Finding no explanation for the delay in seeking leave within the required seven-day period under Rule 62.02(2), the court dismissed the application to extend time and quashed the application for leave to appeal.