Frances P. Kiteley

In a high‑conflict custody dispute involving a proposed relocation of children from Ontario to Los Angeles, the moving party sought an order appointing private counsel for two children after the Office of the Children's Lawyer declined involvement due to timing constraints.

The responding party opposed the request, arguing that counsel appointment would reinforce parental influence and that an updated assessment should occur first.

The court held that it had jurisdiction under rule 4(7) of the Family Law Rules to authorize counsel for children and exercised its discretion to appoint separate lawyers on a limited mandate.

The appointed lawyers were directed only to determine and report the children's views and preferences regarding the proposed relocation, rather than to act with the full rights of a party.

The court emphasized that the narrow role was necessary to ensure the children's voices were heard within tight procedural timelines.

The applicant mother brought an application to compel the respondent father to pay retroactive child support, post-secondary education expenses, and section 7 special and extraordinary expenses for their two children.

The parties had entered into Minutes of Settlement in 1999.

The court found that the mother's delay in seeking retroactive support was not unreasonable given the father's lack of cooperation.

The court ordered the father to pay $9,792 in retroactive child support for the older child, a lump sum of $16,000 for her post-secondary education expenses, and $5,315 for retroactive section 7 expenses, plus costs.

Following earlier reasons granting leave to file a late appeal subject to conditions, the appellant failed to perfect the appeals.

The respondent sought dismissal of the appeals and recovery of costs.

The court declined to consider an affidavit filed contrary to its earlier directions and found the appellant had not complied with the conditions imposed.

Considering the factors governing costs and the appellant’s conduct, the court ordered full indemnity costs in favour of the respondent.

The appeals were dismissed and the stay of the underlying orders lifted.

The applicant brought a motion in a high‑conflict family proceeding seeking to strike the respondent’s Answer and Claim, stay the pleadings, and declare the respondent a vexatious litigant due to repeated motions, alleged disclosure failures, and unpaid costs orders exceeding $34,000.

The respondent, who was self‑represented and unemployed, argued his substantive issues had never been determined on their merits and sought leave to bring a motion for directions.

The court reviewed the Family Law Rules, including rules 1(8), 13(17), and 14(23), and the jurisprudence governing the extreme remedy of striking pleadings.

The court concluded the respondent’s conduct, while problematic, did not rise to the level of deliberate, egregious non‑compliance justifying striking pleadings or declaring him a vexatious litigant, particularly given the ongoing parenting issues involving the children.

The motion was dismissed and the court imposed a case‑management timetable and scheduled a settlement conference to move the litigation forward.

Following the breakdown of a long-term unmarried cohabitation, the respondent sought ongoing and retroactive non‑compensatory spousal support alleging disability due to depression, ADD, and dyslexia.

The court assessed competing psychiatric evidence regarding the respondent’s employability.

Accepting the opinion of a court‑ordered psychiatric assessor over the treating psychiatrist, the court found the respondent suffered from chronic low‑grade depression but was capable of employment and self‑sufficiency if motivated.

The court held that dependency arose only in the final years of the relationship and was inconsistent with the parties’ prior financial independence.

Ongoing support was therefore time‑limited and ordered to terminate after a transition period, with limited retroactive support awarded.

In a post‑separation parenting dispute, the moving party sought an order requiring a psychologist to file and disclose a parenting assessment report prepared during earlier proceedings.

The court held that the report had not been formally ordered under s. 30 of the Children’s Law Reform Act and, in any event, the underlying application had already been resolved by a final parenting order.

As a result, the court lacked jurisdiction to compel production of the report to the parties.

The court further held that even if jurisdiction existed, disclosure to the parents was not shown to be in the children’s best interests.

The motion was dismissed, with the court directing that the report may be provided to professionals involved with the family only upon request and awarding costs against the moving party.

Following earlier findings of contempt for breaching a non‑communication order in a matrimonial proceeding, the court considered whether the respondent had purged his contempt and what sanctions should follow.

The respondent admitted to repeated breaches of orders prohibiting communication with his spouse, including indirect communication through a child and threatening text messages after the contempt finding.

Evidence also showed he had failed to keep the matrimonial home mortgage in good standing while continuing significant discretionary spending.

The court accepted, with hesitation, that the respondent acknowledged responsibility and intended to comply with future orders.

The court found the contempt purged but imposed remedial conditions including a written apology, ongoing disclosure regarding a business venture, continued mortgage compliance, and substantial indemnity costs.

The father sought leave to extend the time to file a notice of appeal from an Ontario Court of Justice order granting the children’s grandmother temporary access.

The motion arose after the children’s mother removed the children from Ontario to the Bahamas shortly after the access order and the father claimed he was unable to comply due to the parties’ separation and the mother’s unilateral actions.

The court reviewed the governing factors for extending time to appeal, including bona fide intention to appeal, explanation for delay, prejudice, merits, and the justice of the case.

The court found the father’s explanation for the delay not credible and concluded the evidence suggested he facilitated the children’s removal from the jurisdiction and obstructed access.

Nevertheless, in light of the children’s interests and the broader administration of justice, leave to appeal was granted subject to strict conditions requiring the children’s presence in Ontario during the appeal process and staying enforcement of the underlying orders pending appeal.

In a family law dispute involving international connections, the respondent husband moved to stay the Ontario proceeding and transfer jurisdiction to France, arguing that the parties were French nationals, had signed a marriage contract referencing French law, and that a divorce proceeding had already commenced in France.

The court held that a prior consent order declaring Ontario to be the appropriate jurisdiction operated as res judicata and was not temporary.

The husband’s attempt to revisit jurisdiction was rejected, particularly in light of his repeated breaches of court orders and failures to provide disclosure.

The court dismissed the jurisdiction motion, ordered that the French proceeding be withdrawn, and directed that proceeds from the sale of the matrimonial home be placed in trust due to concerns about the husband’s non-compliance with prior orders.

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.

The parties separated after a 31-year marriage.

The applicant sought a divorce on the grounds of cruelty, retroactive and ongoing spousal support, and equalization of net family property.

The court found the applicant failed to prove cruelty and granted the divorce on the basis of a one-year separation.

The court imputed an income of $15,000 per year to the applicant, finding she had an obligation to contribute to her own support despite her claims of medical issues and abuse.

The respondent was ordered to pay ongoing spousal support of $2,734 per month plus a percentage of his bonuses, and to designate the applicant as the irrevocable beneficiary of his life insurance policy.

The court also resolved outstanding equalization issues, including denying the deduction of the applicant's Legal Aid lien and contingent taxes on RRSPs.

In a family law motion, the moving party sought reinstatement of an existing parenting arrangement after the other parent unilaterally retained the child and refused to follow the court-ordered residential schedule.

Evidence indicated escalating conflict, the child’s refusal to return to the moving party’s residence, and concerning conduct by the responding parent, including hostility toward the moving party and disregard for court authority.

The court found that the responding parent’s behaviour undermined the child’s welfare and demonstrated an inability to participate in joint decision‑making.

Exercising its parens patriae jurisdiction, the court varied the prior joint custody order to grant the moving party interim sole custody while maintaining the existing residential schedule.

The matter was urgently referred to the Office of the Children’s Lawyer to investigate and provide recommendations.

In a family law proceeding following separation, the applicant brought a motion for contempt alleging the respondent breached court orders prohibiting communication, requiring mortgage payments, and mandating financial disclosure.

The court applied the three-part test for civil contempt and found the respondent deliberately and wilfully breached a non‑communication order by contacting the applicant directly despite clear court orders.

The court also found the respondent in breach of orders requiring mortgage payments and financial disclosure but declined to make additional findings of contempt for those breaches.

The respondent was ordered to attend court to purge his contempt and was directed to comply with outstanding disclosure and mortgage obligations.

Following the dismissal of the plaintiffs' appeal from a decision refusing certification of a class action, and the dismissal of the defendant's cross-appeal regarding costs, the Divisional Court determined the costs of the appeal.

The court found that the action involved a matter of public interest, particularly given the promulgation of the Cigarette Ignition Propensity Regulations.

Applying section 31(1) of the Class Proceedings Act and Rule 57, the court ordered that each side bear its own costs of the appeal and cross-appeal.

The appellant supplier appealed the dismissal of its breach of trust claim against the individual directors and an employee of a defunct contractor under s. 8 of the Construction Lien Act.

The trial judge had dismissed the claim, relying on a previous decision to hold that the supplier must intend the materials to be used for a known and identified improvement.

The Divisional Court allowed the appeal, distinguishing the previous decision and holding that the plain language of the Act does not require such intent.

The Court found the directors and the employee who had effective control of accounting jointly and severally liable for the breach of trust.

The applicants, physicians under investigation by the College of Physicians and Surgeons of Ontario, brought applications for judicial review challenging the scope of investigators' powers under the Health Professions Procedural Code.

They argued that investigators could not compel them to submit to interviews or allow observation of their surgical practices.

The Divisional Court dismissed the applications, holding that the statutory power to 'inquire into and examine the practice' includes the power to observe surgeries, and the incorporation of the Public Inquiries Act grants investigators the power to compel interviews.

The court also dismissed as premature the challenge to the Registrar's decision that there were reasonable and probable grounds to initiate the investigations.

Toronto Hydro-Electric System Ltd. appealed a decision of the Ontario Energy Board that required any dividend paid by the utility to its parent company be approved by a majority of its independent directors.

The Divisional Court allowed the appeal, finding that the Board lacked both express and implied jurisdiction under the Ontario Energy Board Act, 1998 to impose restrictions on the corporate process for declaring dividends.

The condition was found to be an unwarranted intrusion into corporate governance and contrary to established corporate law principles.

The Canadian Medical Protective Association and the Ontario Medical Association brought applications for judicial review of an Adjudicator's order requiring the disclosure of a 2004 Memorandum of Understanding under the Freedom of Information and Protection of Privacy Act.

The applicants argued the OMA was not a 'trade union' under the Act and that the agreement contained confidential third-party information exempt from disclosure.

The Divisional Court dismissed the applications, upholding the Adjudicator's broad interpretation of 'trade union' and finding her conclusion that the information was not 'supplied in confidence' to be reasonable.

The property owners sought leave to appeal an amended decision of the Assessment Review Board regarding omitted property assessments for the 2004, 2005, and 2006 taxation years following home renovations.

The owners argued the Board erred in law by allowing the omitted assessments, claiming the issues were barred by issue estoppel and res judicata.

The Divisional Court denied leave to appeal, finding that the Board's conclusion that the omitted assessments were properly returned for the additional square footage was a determination of fact, not a question of law as required by section 43.1(1) of the Assessment Act.

The defendants' motion for leave to appeal a decision substituting the representative plaintiff in a class action was dismissed.

The plaintiff sought costs of $22,858.21, while the defendants argued costs should be in the cause or limited to $2,500.

The court found the plaintiff's costs excessive for a narrow procedural motion that arose partly from a carriage dispute among class counsel.

Applying the principle of fair and reasonable expectations, the court fixed costs at $2,500 payable by the defendants.