Martha McCarthy

The appellant father appealed a custody and access order from the Superior Court of Justice concerning his three sons.

The motions judge granted summary judgment in favour of the respondent mother, awarding her sole custody of two of the three children and ordering that the father's access and communication with the children be at the children's discretion.

The father challenged the appropriateness of summary judgment, the weight given to the custody assessment, the best interests analysis, and alleged Charter violations.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's decision to proceed by summary judgment, his consideration of the evidence, his analysis of the children's best interests, and his costs award.

The respondent sought an order compelling the applicant to attend for cross-examination on her affidavit filed in support of a motion for advance funding of an appeal.

The applicant opposed the cross-examination.

The court dismissed the respondent's request, finding that the respondent was in breach of a disclosure order and that the court should not grant relief to a party not in compliance with court orders.

The court noted that the adequacy of the applicant's evidence and the evidentiary implications of her refusal to be cross-examined would be matters for the judge hearing the advance costs motion.

The appellant father appealed a final custody and access order to the Divisional Court.

The panel raised the issue of jurisdiction, noting that the order was made in a proceeding where both parties sought a divorce.

Under section 27 of the Children's Law Reform Act, claims for custody and access are stayed in favour of the Divorce Act when a divorce is claimed.

Because the order was made under the Divorce Act, the appeal route lies to the Court of Appeal under section 6(1)(b) of the Courts of Justice Act, not the Divisional Court.

The Divisional Court found the father had a meritorious appeal regarding the termination of his access and transferred the appeal to the Court of Appeal pursuant to section 110(1) of the Courts of Justice Act.

The applicant father brought a motion for summary judgment seeking sole custody of his three children and an order forcing them into a reunification program (Family Bridges) with a 90-day no-contact period with the respondent mother.

The mother brought a cross-motion for summary judgment seeking sole custody and access at the children's discretion.

The court found no genuine issue for trial, concluding that the children's refusal to see their father was a justified estrangement resulting from his past violence, rather than parental alienation by the mother.

The court respected the strong and consistent views and preferences of the children, dismissed the father's motion, and granted the mother's motion for sole custody with access at the children's discretion.

The applicant mother brought a motion for an order requiring the family to attend a reunification program to address the children's resistance to spending time with her.

The respondent father opposed the motion, arguing the program constituted 'treatment' requiring the children's consent under the Health Care Consent Act, and denying any alienation.

The court found the program did not constitute treatment and exercised its parens patriae jurisdiction to order attendance, finding the father had inappropriately involved the children in the litigation and that the program was in their best interests.

The applicant sought leave to appeal a $30,000 costs order made against him following a family law motion regarding child custody.

The applicant argued there was conflicting case law on awarding costs in child-related issues and that the motions judge erred by not considering the respondent's offer to settle.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions on principle and no reason to doubt the correctness of the order, as the respondent was clearly successful on the main issue of custody.

The applicant father brought an urgent motion for custody of a five-month-old infant child born to unmarried parents.

The respondent mother and maternal grandmother also brought competing custody applications.

The court consolidated the proceedings in Brampton, finding that the child was ordinarily resident there.

The court set aside prior without prejudice orders and established a temporary parenting plan providing the father with substantial access to the child, contingent upon the mother residing with the maternal grandmother and receiving treatment for mental health concerns.

The court emphasized the presumption favoring parental custody while recognizing the need for immediate protection of the child during the mother's mental health crisis.

The father sought costs against the child's privately retained counsel, Lorne Glass, following the dismissal of a child protection application brought by the 13-year-old applicant.

The father claimed that Mr. Glass acted improperly by bringing an abuse of process proceeding devoid of merit, wasting court time, and failing to seek proper court authorization for his representation of the child.

The court found that Mr. Glass's conduct caused costs to be incurred unnecessarily by commencing a collateral proceeding for an improper purpose—to stay the father's pending custody trial—rather than seeking appointment as counsel under the Family Law Rules.

Despite finding unnecessary costs were incurred, the court applied the "extreme caution" test and awarded only $5,000 in costs against counsel, recognizing the importance of protecting resolute advocacy in child protection matters.

Following a high-conflict custody trial where the respondent mother was found to have alienated the children, the applicant father sought costs of over $785,000.

The court awarded the applicant costs on a substantial indemnity basis for the main action and full recovery for specific motions, finding the respondent engaged in unreasonable and bad faith conduct.

The court also apportioned the costs of the section 30 assessment and reintegration therapy, ordering the respondent to pay the majority of these expenses due to her alienating behaviour.

Total costs of $625,337.40 were awarded to the applicant.

The applicant brought a motion seeking reimbursement for s. 7 expenses, further advances, and orders regarding a child's treatment and custody.

The respondent had a history of non-compliance with s. 7 expense orders, including failing to pay tuition, which caused a crisis for one child.

The court ordered the respondent to immediately reimburse the applicant for a specific university tuition payment.

The remaining s. 7 claims and the motions concerning the child's custody and treatment were adjourned, with the court noting the respondent's lack of collaboration and late disclosure as contributing factors to the ongoing issues and delays.

Directions for cost submissions were also provided, with the court highlighting the respondent's conduct.

The applicant, Tom, sought an order for the parties' 14-year-old child, Scarlet, to live with him in the United Kingdom and attend school there.

The respondent, Marie, opposed this motion and brought a cross-motion for interim child and spousal support, and s. 7 expenses.

The court dismissed Tom's motion, finding it was not in Scarlet's best interests to be uprooted from her established home and school in Toronto.

The court granted Marie's request for interim child and spousal support, and s. 7 expenses, based on the parties' 2016 incomes.

Marie was granted interim custody with final decision-making authority.

The moving party husband sought leave to appeal an order restraining him from depleting assets, requiring a certificate of pending litigation, and ordering him to post a $4 million letter of credit under sections 12 and 40 of the Family Law Act.

He also sought a stay of the order.

The Divisional Court granted leave to appeal solely on the issue of whether the court has jurisdiction under the Family Law Act to order the posting of a bond or letter of credit, finding good reason to doubt the correctness of that specific relief.

The court also granted a stay of the requirement to post the letter of credit pending the appeal.

The respondent, Y, brought a motion to substitute her psychiatrist for the Family Bridges Aftercare worker, Ms. J. Vanbetlehem, alleging a conflict of interest due to Ms. Vanbetlehem's prior therapeutic services to the applicant, X. The court dismissed Y's motion, finding the issue was res judicata as Y knew or ought to have known about the alleged conflict before trial.

Furthermore, the court found no actual conflict of interest, as Ms. Vanbetlehem's services to X were not therapeutic but advisory, and the Family Bridges program is non-evaluative, with all professionals' goals aligned with the children's best interests.

Y was ordered to comply with the original order to participate in the Family Bridges Program.

This endorsement addresses the costs arising from a motion brought by the Applicant under sections 12 and 40 of the Family Law Act.

The court found that success on the underlying motion was divided, with the Applicant securing significant asset preservation orders while the Respondent successfully resisted broader relief.

The Respondent's prior unreasonable conduct justified the Applicant's motion, but both parties acted reasonably during the motion itself and in their settlement efforts.

Considering these factors, the court awarded the Applicant full disbursements and approximately 50% of her legal fees.

The applicants initiated a constitutional challenge to sections of the Children’s Law Reform Act and Vital Statistics Act concerning parental recognition for LGBTQ parents.

The respondent failed to file an Answer within the 30-day period and subsequently brought motions for an open-ended extension and directions.

The applicants brought a cross-motion.

The court dismissed all motions but, recognizing the complexity and importance of the constitutional issues, granted the respondent an extension to file an Answer and set a timetable for the litigation.

The respondent was sanctioned with $2,000 in costs for its unreasonable procedural conduct in delaying the filing of its motion for extension.

The applicant sought interim orders under sections 12 and 40 of the Family Law Act to restrain the respondent from dissipating assets, alleging depletion of capital that would impair her equalization and retroactive support claims.

The respondent opposed, arguing the applicant failed to meet the burden of proof and the relief sought was excessive.

The court found that while reckless depletion was not proven, there was a real risk the applicant would be unable to collect on a significant judgment due to the respondent's financial arrangements and delays.

The court granted a more tailored interim order, preserving specific assets, requiring the registration of a certificate of pending litigation against a cottage, and mandating a $4 million bond or letter of credit, while allowing the respondent to conduct ordinary course business with reporting requirements.

A 13-year-old child commenced a child welfare proceeding against her parents and the local children's aid society, seeking a finding that she and her siblings were in need of protection under the Child and Family Services Act.

The father moved to dismiss the application as an abuse of process and for failure to raise a genuine issue for trial.

The court found that the child had commenced the proceeding under the influence of her mother as a tactical measure to interfere with concurrent Superior Court custody proceedings.

The court dismissed the application, finding it was an abuse of process and raised no genuine issue for trial.

In a high-conflict family law trial, the applicant father sought sole custody of the parties' three children, alleging severe parental alienation by the respondent mother.

The court found overwhelming evidence that the mother had alienated the eldest child and that the younger children were at risk.

The court granted sole custody to the father and ordered the immediate implementation of a Phase II reunification program, which included a 90-day no-contact period between the children and the mother.

The father was also permitted to relocate with the children to Toronto.

Additionally, the court imputed an income of $40,000 to the mother for support purposes, ordered her to pay child support, ordered the father to pay spousal support, and resolved various net family property issues, including the valuation and treatment of a jointly leased cottage.

During a family law trial, the respondent sought to qualify a social worker as an expert in family therapy and parental alienation.

The court refused to qualify the proposed expert, finding she failed to meet the threshold requirements of admissibility under the Mohan framework and lacked the requisite independence and impartiality required by the White Burgess test.

The court noted the proposed expert viewed herself as an advocate for the children, failed to comply with the Family Law Rules regarding expert duties, and demonstrated bias in her report.

However, the court admitted video interviews of the children conducted by the proposed expert, subject to later submissions on their weight.

In a high‑conflict custody dispute, the father brought an emergency motion seeking a declaration that the Superior Court custody trial should proceed notwithstanding a child protection application commenced in the Ontario Court of Justice by a child through counsel.

The mother cross‑moved seeking adjournment, involvement of the Office of the Children’s Lawyer, and consideration of the children’s wishes.

The court found the protection proceeding appeared to be a tactical attempt to delay the scheduled custody trial and concluded the best interests of the children required prompt resolution of the family dispute.

The court held the protection application did not automatically stay the custody trial and declined to adjourn the trial.

However, the court declined to stay the protection proceeding itself, leaving that determination to the Ontario Court of Justice.