Martha McCarthy

The appellant mother appealed a custody and access order that granted the respondent father generous access to their children, arguing that the father had attempted to kill her during a vacation in Jamaica.

The trial judge had found the mother's allegations not credible, relying heavily on hearsay evidence from a blood expert who testified at the father's Jamaican criminal trial.

The Court of Appeal allowed the appeal, finding that the trial judge erred in admitting the hearsay evidence without threshold reliability, demonstrated a reasonable apprehension of bias through uneven scrutiny of the evidence, and failed to properly assess the best interests of the children, particularly regarding domestic violence.

A new hearing on custody and access was ordered.

The parties separated following a trip to Jamaica in December 2010, during which the applicant alleged the respondent attempted to kill her by slashing her throat, while the respondent alleged the applicant attacked him with a knife.

The respondent was acquitted in a Jamaican criminal trial.

In this family law trial, the court could not determine on a balance of probabilities who attacked whom.

Given the extreme conflict, the court awarded sole custody to the applicant but ordered increasing, unsupervised access for the respondent, culminating in a week-about shared parenting schedule.

The court also addressed child support, found the applicant in contempt for denying telephone access, and ruled that the applicant's family cottage qualified as a matrimonial home.

Following a successful appeal where the matter was remitted for trial, the Court of Appeal considered the parties' costs submissions.

The court applied the presumption that a successful appellant is entitled to costs and awarded the appellant $10,000 inclusive of disbursements and taxes.

Following a successful family law motion granting injunctive relief to prevent dissipation of assets, the moving party sought costs on a full recovery basis.

The court considered Rule 24 of the Family Law Rules and determined that the responding party had acted in bad faith by failing to provide proper financial disclosure, terminating support, and attempting to deal with jointly owned assets while international proceedings were ongoing.

Given the complexity of the litigation, the high financial stakes, and the conduct of the responding party, the court held that full indemnity costs were warranted.

The court ordered payment of substantial legal fees and disbursements to counsel for the moving party within 30 days.

The appellant father appealed a decision dismissing his motion to change child support for his adult disabled son, who had begun receiving Ontario Disability Support Program (ODSP) benefits.

The trial judge and Divisional Court held that the presumptive table approach under the Federal Child Support Guidelines was not inappropriate.

The Court of Appeal allowed the appeal, finding that the receipt of ODSP benefits displaced the assumptions underlying the table approach, making it inappropriate.

The matter was remitted for trial to determine the appropriate amount of support under s. 3(2)(b) of the Guidelines on a more complete factual record.

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.

The appellant mother sought to vary a final custody order to allow her to relocate with the parties' two children from Peterborough to Cobden.

The application judge dismissed the motion, finding no material change in circumstances since the original order, as the mother's new relationship and job opportunity were foreseeable at that time.

The application judge also found the move would not be in the children's best interests due to the disruption of their stability and their close relationship with the respondent father.

The Court of Appeal upheld the decision and dismissed the appeal.

The appellant mother appealed a decision granting the respondent father's application under the Hague Convention to return their child to Australia.

The mother opposed the return under Article 13(b), alleging the father was a violent criminal and drug addict, and that returning the child would expose him to a grave risk of psychological harm.

The application judge ordered the child's return without hearing viva voce evidence.

The Court of Appeal dismissed the appeal, holding that the application judge correctly applied the stringent test under Article 13(b) and that oral evidence was not required because there was no realistic possibility it would establish the defence.

The matter was remitted to determine undertakings prior to the child's return.

The appellant appealed the judgment of the Superior Court of Justice.

The Court of Appeal found no basis to interfere with the trial judge's factual conclusions, noting that the trial judge found the presumption of advancement had been rebutted.

The appeal was dismissed, and costs were awarded to the respondent in the amount of $12,500.