James S. Marks

The respondent moved to dismiss the proceeding for lack of jurisdiction and to set aside ex parte orders from 2018 and 2019.

The court dismissed the motion to set aside the ex parte orders, finding it was too late given the years of litigation abroad under the Hague Convention.

Regarding jurisdiction, the court found Ontario clearly had jurisdiction as the children were habitually resident there.

The court declined to rule on forum non conveniens (s. 25 CLRA) as premature, pending the outcome of the applicant's appeal in Morocco concerning the children's return, noting concerns about the UAE court's custody decision (gender bias, lack of best interests consideration, and recognition of Talaq divorces).

The parties separated after a short marriage of less than three years.

The court resolved final issues regarding parenting, child and spousal support, and equalization of net family property.

The court ordered a parallel parenting regime and a gradual increase in the father's parenting time, culminating in equal shared parenting.

The father's income was imputed for support purposes, resulting in retroactive and ongoing child and spousal support awards.

The court also ordered an unequal division of net family property under s. 5(6) of the Family Law Act, finding that an equal division would be unconscionable given the short duration of cohabitation and the father's pre-marriage acquisition and improvement of the matrimonial home.

The applicant brought a motion seeking extensive financial disclosure from the respondent after he failed to pay child and spousal support for several months.

The respondent argued he was unable to pay due to a blackout period restricting the sale of his vested Restricted Stock Units, and that he cured the arrears once the blackout ended.

The court found that while the respondent had a history of non-compliance, much of the requested disclosure was irrelevant to the outstanding issues of support and property division.

The court ordered the respondent to produce only the documents relevant to determining his income for support purposes and awarded costs to the applicant.

The respondent brought a motion to amend his answer to claim occupation rent after the parties had reached a partial settlement on spousal support and the sale of the matrimonial home.

The applicant opposed, arguing that the proposed amendment would cause non-compensable prejudice and was an attempt to circumvent the partial settlement.

The court found that the issues of occupation rent, matrimonial home sale, and spousal support were interconnected and that allowing the amendment would undermine the benefits of partial settlements.

The respondent's motion to amend his answer to claim occupation rent was dismissed, while other amendments were permitted.

The court also ordered the applicant to sign a Miglin release as per the partial settlement, with consequences for non-compliance.

The Father sought an urgent ex parte motion to prevent the Mother from removing the child, alleging passport forgery and intent to abscond.

The Mother brought a cross-motion for support.

The court found the Father's allegations false and his income evidence misleading, constituting bad faith under Family Law Rule 24(8).

The Mother was largely successful, obtaining a non-removal order (by consent, from Ontario, not just Toronto), and interim child and spousal support.

The court awarded the Mother $17,000 in costs, finding the Father's conduct warranted sanctions.

The father brought an application under the Hague Convention for the return of the parties' two children to Adelaide, Australia.

The mother had travelled to Ontario with the children for a temporary visit but failed to return them.

The court found that the children were wrongfully retained in April 2020 and that their habitual residence immediately prior to the retention was Australia.

The court rejected the mother's argument that the 11-year-old child's views should be considered as an exception to return.

The application was granted and the children were ordered to be returned to Australia.

The parties separated after a 21-year marriage.

The primary issue was the equalization of the matrimonial home, which the respondent had inherited from her grandparents.

The applicant claimed a 50% ownership interest based on an alleged agreement and unjust enrichment, and sought an unequal division of net family property under s. 5(6) of the Family Law Act due to significant post-separation increases in the property's value.

The court found the respondent was the sole owner but the applicant was entitled to an equalization payment based on the valuation date value.

The court declined to apply s. 5(6), finding the threshold of unconscionability was not met.

The court also awarded the applicant occupation rent for a mobile home on the property, retroactive spousal support, and ordered him to pay child support for one child.

The applicant sought a declaration that the respondent wrongfully retained their four children in Ontario under the Hague Convention and an order for their return to Melbourne, Australia.

The respondent did not dispute the applicant's custodial rights or Australia as the children's habitual residence, but argued exceptions under Article 13(a) (consent/acquiescence) and 13(b) (grave risk of harm).

The court found no unequivocal consent or acquiescence by the applicant and determined that the alleged past abuse did not meet the high standard for grave risk of harm or an intolerable situation.

The application was granted, and the children were ordered to be returned to Australia.

The applicant father brought a Hague Convention application seeking the return of his 8-year-old daughter to Italy after the respondent mother wrongfully removed her to Canada in 2017.

The mother argued that Italy was not the child's habitual residence, that returning her would pose a grave risk of harm, and that the child was now settled in Ontario.

The court rejected all of the mother's arguments, finding that the child's habitual residence was Italy, the allegations of abuse did not meet the high threshold for grave risk, and the child's status in Canada was precarious.

The court ordered the immediate return of the child to Italy.

The Applicant and Respondent both brought motions concerning disclosure, amending pleadings, questioning, child support, spousal support, and interim disbursements.

The court granted mutual orders for disclosure and amending pleadings, with the Respondent advancing funds for the Applicant's disclosure costs.

Leave was granted for both parties to question each other, with time limits.

The court ordered the Respondent to pay interim child support of $1,296 per month retroactive to January 1, 2018, and interim spousal support of $2,185 per month retroactive to January 1, 2018.

The Respondent was also ordered to pay $20,000 in interim disbursements to the Applicant.

The applicant mother, Andrea Bolla, brought an application for custody in Ontario after wrongfully removing her two children from Botswana, where they habitually resided with the respondent father, Alias Swart.

The central issue was whether the Ontario court should accept jurisdiction, which required the applicant to establish a risk of "serious harm" to the children if returned to Botswana under s. 23 of the Children's Law Reform Act.

The court found the applicant's claims of abuse, corruption in the Botswana legal system, and the children's anxiety to be unsubstantiated or insufficient to meet the high threshold of "serious harm." The court ordered the children's return to Botswana for custody proceedings to continue there, with undertakings from the father to mitigate short-term harm.

The respondent father brought a motion to set aside a default order made by Justice Nevins on January 26, 2015, granting the applicant mother sole custody of their child, a restraining order, and child support.

The father was not properly served with the original application, as the process server filed a false affidavit of service.

The court found that the father was entitled to have the order set aside because he was never properly served and had no notice of the proceeding.

The court set aside the default order and made temporary orders granting the mother custody pending a new application in British Columbia, where the child now resides, and granting the father Skype access to the child.

The plaintiffs brought a motion for summary judgment seeking specific performance of an agreement of purchase and sale for rural land in Prince Edward County after the vendor refused to close.

The defendant asserted misunderstanding regarding the closing date and HST, but the court found the contract unambiguous and concluded the defendant wrongfully repudiated the agreement.

Applying the modern test for specific performance following Semelhago and Southcott, the court held the property was uniquely suited to the plaintiffs’ residential, artistic, and educational purposes and that no reasonable substitute property was available.

Monetary damages would not adequately compensate the plaintiffs for the loss of the property’s distinctive features and suitability for their proposed use.

Summary judgment was granted and the plaintiffs were awarded specific performance of the agreement.

Following a successful motion to obtain financial disclosure and enforce a prior court order in a family law matter, the applicant sought costs of $16,147.

The respondent disputed the quantum, arguing unnecessary steps, duplication of services, and efforts to comply with the prior order.

The court noted the motion was largely successful but observed issues with civility between the parties and duplication in the applicant’s billing.

Considering the circumstances, including the relative simplicity of the issues and the discretionary nature of costs, the court reduced the requested amount.

Costs were fixed at $10,000 plus disbursements and HST.

The court addressed costs arising from prior family law endorsements ordering disclosure relating to the respondent’s income and business interests for purposes of spousal support and equalization.

The applicant successfully obtained disclosure from the respondent and a related corporation concerning valuation and financial records.

The court held that the disclosure should not have been resisted and emphasized the importance of full financial disclosure in family proceedings.

Applying the Courts of Justice Act and Rule 24 of the Family Law Rules, the court awarded substantial costs to the applicant.

Costs were fixed at $30,000 payable forthwith, jointly and severally by the respondent and the non-party corporation.

A family law motion concerning financial disclosure and interim financial issues between separating spouses.

The court addressed ongoing disclosure disputes related to the respondent’s income, assets, and financial transactions, including the transfer of $50,000 shortly after separation.

The court ordered the respondent to pay $15,000 previously ordered, directed further banking disclosure relating to a safety deposit box, and permitted the potential sale of a condominium property subject to conditions, with sale proceeds to be held in trust or paid into court pending further order.

The decision emphasized the importance of complete financial disclosure to permit expert valuation and facilitate settlement or trial.

The applicant spouse brought a motion under Rule 19(11) of the Family Law Rules seeking disclosure of financial records from a non‑party corporation in which the respondent spouse held a 22% interest.

The disclosure was sought to permit the applicant’s expert business valuator to assess the respondent’s corporate interest, determine the accuracy of his net family property, and evaluate his income for equalization and spousal support purposes.

The respondent and the non‑party corporation opposed the request, arguing the disclosure was unnecessary and aimed at challenging the respondent’s credibility.

The court held that the requested corporate and banking records were relevant, reasonable, and necessary for a proper valuation of the respondent’s interest and that it would be unfair to proceed without them.

The court ordered the non‑party corporation to provide access to the requested documentation and required the respondent to pay an interim disbursement of $15,000 to fund the expert’s work.

The applicant and respondent, a same-sex couple, entered into a civil partnership in the United Kingdom.

After relocating to Ontario and subsequently separating, the applicant sought a divorce and corollary relief.

The respondent argued they were not married.

The applicant moved for a declaration that their U.K. civil partnership constituted a marriage under Canada's Civil Marriage Act.

The court granted the motion, finding that failing to recognize the civil partnership as a marriage would violate Canadian public policy and Charter equality rights, as the U.K. prohibited same-sex marriage and only offered civil partnerships.

The court declared the civil partnership a marriage and the parties spouses under the Divorce Act and Family Law Act.

In a family law proceeding, the court addressed costs arising from earlier rulings relating primarily to disclosure disputes.

The applicant had brought motions alleging non-compliance with prior disclosure orders and seeking a finding of contempt, which was not granted, though the court found the respondent had not fully complied in a timely manner.

The court considered the conduct of both parties, including the respondent’s incomplete disclosure and the applicant’s counsel’s refusal to accept earlier delivery of documents that might have avoided the motion.

Applying Family Law Rule 24 and the objectives of Rule 2, the court fixed costs at $35,000 but ordered only $10,000 payable immediately, leaving the balance to the trial judge or to be addressed on a future motion concerning fees or unresolved disclosure.

The applicant brought a motion seeking a finding of contempt against the respondent for failing to comply with a prior disclosure order in a family law proceeding.

The court found that the motion for contempt was improperly brought because it was not commenced using the required Form 31 and therefore the procedural requirements for contempt had not been met.

While the respondent had only substantially complied with the disclosure order after being served with the motion, the court declined to make a contempt finding.

Instead, the court directed the respondent to respond to outstanding disclosure requests within thirty days in accordance with the prior order and clarified further steps available if disclosure was not provided.

The motion for contempt was dismissed and other disclosure and financial issues were adjourned.