Melanie Battaglia

The Court of Appeal for Ontario granted a motion to quash an appeal in a family law matter concerning a motion for a sealing order and publication ban to protect a child’s privacy.

The court held that the order under appeal was interlocutory, not final, and thus any appeal lay to the Divisional Court with leave, not to the Court of Appeal.

The decision reviews the distinction between interlocutory and final orders, emphasizing that privacy and sealing orders are generally collateral to the main issues in family law proceedings and do not determine substantive rights.

The court also declined to reconstitute itself as the Divisional Court.

The applicant, Panagiotis Korogonas, sought to vary a temporary, without prejudice child support order (the "Shore Order") so that either the respondent, Samantha Iorio, would pay him child support or neither party would pay.

The court applied the test from Gilkinson v. Nichols, 2023 ONSC 1504, and found that the applicant had not established a prima facie case for a material change in circumstances or that the current arrangement was incongruous or absurd.

The motion was dismissed, and the applicant was ordered to pay costs to the respondent.

This appeal addressed the autonomy of adults with disabilities under parental charge, specifically concerning parenting orders under the Divorce Act for adults presumed capable.

The Court of Appeal found that the motion judge erred by making a temporary parenting order for a 26-year-old son with Down Syndrome without a specific determination of his capacity to make decisions about his residence and without affording him the opportunity to participate in the proceedings.

The court emphasized the common law presumption of capacity and the audi alteram partem principle, holding that an adult presumed capable must be served and given the right to be heard on matters affecting their fundamental rights.

The appeal was allowed, and the parenting order was set aside.

The Applicant Father sought to reinstate week-about parenting time as per a separation agreement, while the Respondent Mother cross-moved for the appointment of the Office of the Children's Lawyer (OCL), counselling for the eldest child, and supervised parenting.

The court ordered OCL involvement and established a modified parenting schedule for the Father (alternate weekends and Wednesday overnights), noting the detrimental impact of restrictive bail terms on parenting arrangements.

The court also encouraged the parties to discuss mutually agreeable counselling.

The appellant, a third-party creditor (2401242 Ontario Inc.), appealed an order releasing the wife's share of matrimonial home sale proceeds.

The appellant had obtained a default judgment and filed a writ against the husband, arguing priority over the wife's interest in the jointly held matrimonial home.

The Court of Appeal dismissed the appeal, holding that a creditor cannot seize the interest of a non-debtor joint tenant.

The court clarified that under Ontario's Execution Act, a writ only binds the debtor's exigible interest in jointly held land, not the entire property, and therefore the wife was entitled to her half-share of the proceeds.

This is a costs endorsement following the dismissal of the applicant's motion for financial disclosure.

The applicant, Barbara Cohen, sought extensive financial disclosure from the Estate of Sidney Cohen and other parties, which the court found to be an attempt to circumvent a prior bifurcation order by Justice Audet.

The court dismissed the disclosure motion and subsequently awarded costs to the successful respondents and non-parties, including the Estate, Susan Charendoff, Brian Cohen, and several corporate non-parties.

The decision addresses the principles of costs, including partial indemnification, encouraging settlement, discouraging inappropriate behavior, and ensuring justice, while considering the reasonableness and proportionality of the requested amounts.

The court held a voir dire to determine the testimonial capacity of the applicant, Barbara Cohen, who suffers from mild dementia.

The respondents argued she had capacity, while her counsel argued she lacked it.

Based on expert reports from two geriatric specialists (Dr. Joel Sadavoy and Dr. Richard Shulman) and the court's own questioning of Barbara, the court found that the applicant lacked the capacity to testify due to inconsistent memory, difficulty communicating complex ideas, and potential for increased anxiety under cross-examination.

The court ruled that her previous questioning transcripts would be filed instead of compelling her live testimony.

The applicant brought a motion for extensive financial disclosure from the respondents and non-parties in the context of a bifurcated trial.

Phase 1 of the trial was ordered to solely determine the validity of the marriage contracts.

The applicant argued the disclosure was necessary to assess the value of the estate for the fairness consideration under the Levan test and to respond to the defence of laches.

The court dismissed the motion, finding that the exact value of the estate was not necessary for Phase 1 and that ordering the disclosure would undermine the purpose of the bifurcation order.

In a family law proceeding, the parties disputed whether the applicant, who suffers from mild dementia and requires a litigation guardian, had the testimonial competence to testify at trial.

The court reviewed the conflicting expert evidence from geriatric specialists regarding her capacity to observe, recollect, and communicate.

Applying section 18(2) of the Ontario Evidence Act, the court determined it was necessary to conduct an in-person examination of the applicant to assess her testimonial capacity before ruling on the issue.

Following a successful motion by the applicant father for a Section 30 parenting assessment, the court determined the appropriate quantum of costs.

The applicant sought full recovery of $13,704.08 based on an offer to settle, while the respondent argued for no costs or a maximum of $5,000.

The court found the applicant's offer to settle was as favourable as the final order and that the respondent's conduct in opposing the motion was unreasonable.

The court awarded the applicant costs of $11,017.50 inclusive of HST.

The applicant father brought a motion to enforce a final parenting order after the respondent mother breached it, resulting in the father not seeing the children for several months.

Instead of pursuing a contempt motion, the father sought a Section 30 assessment under Rule 1(8) of the Family Law Rules.

The court held that Rule 1(8) is the preferred, child-focused approach to a breach of a parenting order, avoiding the exacerbation of conflict inherent in contempt proceedings.

The court ordered a Section 30 assessment to determine the children's best interests and how to make the parenting schedule operative.

Maria Anna Koundouros brought a motion to strike the claim of her former mother-in-law, Stavroulla Koundouros, who sought repayment of $1,598,000 advanced to Maria and her son during their marriage.

Maria argued that a promissory note for the funds was solely between Stavroulla and her son, Nicolaos, and therefore no cause of action existed against her.

The court dismissed Maria's motion, finding that Stavroulla's claim, which included allegations of unjust enrichment and trust claims based on joint benefit and Maria's access to funds, disclosed a reasonable cause of action.

The court emphasized that the Family Law Rules, not the Rules of Civil Procedure, primarily govern such family disputes and that the promissory note was not dispositive at this early stage.

The respondent in the main action brought a motion for temporary spousal support and further financial disclosure.

The applicant opposed, arguing the parties were never spouses under the Family Law Act and that a previous $60,000 payment satisfied any obligation.

The court found the moving party established a prima facie case for support based on her residency in the responding party's home and financial dependence.

The court ordered the responding party to pay $1,600 monthly in temporary support based on an acknowledged income of $134,000.

On the disclosure issue, the court gave the responding party 30 days to engage an expert income analyst before mandating the extensive corporate disclosure requested.

The applicant sought a non-dissipation and preservation order under sections 12 and 40 of the Family Law Act to restrain the respondent from dealing with assets, particularly shares in his private corporations, pending trial.

The court considered the strength of the applicant's case, balance of convenience, and irreparable harm.

While the applicant had an unassailable claim for spousal support and an arguable case for an equalization payment, the court found no risk of dissipation by the respondent, who had complied with temporary support orders and demonstrated efforts to grow his business.

Granting the order would severely cripple the respondent's companies, causing irreparable harm.

The motion was dismissed, and the applicant was ordered to pay agreed-upon costs, to be set off against future payments.

The applicant sought costs following a successful motion where the respondent was found to have inappropriately moved assets and failed to fulfill disclosure obligations.

The court declined to award enhanced costs based on the applicant's late offer to settle.

However, the court awarded substantial indemnity costs due to the respondent's unreasonable conduct in failing to make timely disclosure and attempting to shield assets from the proceeding.

Costs were fixed at $58,000.

Following a family law trial concerning property division and support, the court determined costs after receiving written submissions.

The husband had made an offer to settle that was more favourable to the wife than the eventual judgment, engaging the presumptive entitlement to costs under the Family Law Rules and supporting substantial indemnity recovery.

Although the husband sought up to $792,447.47 in full recovery costs, the court found the claim disproportionate given the relatively brief and uncomplicated four‑day trial.

Applying the fairness and reasonableness principles from Boucher v. Public Accountants Council and reviewing comparable family law authorities, the court reduced the amount significantly.

The wife was ordered to pay $265,000 inclusive of disbursements and taxes, with payment tied to the sale of her home unless an undertaking was not provided.

Following a long marriage with three children, the court determined property equalization, spousal support, and child support issues after the parties agreed on a parenting plan.

The primary dispute concerned valuation of significant real estate assets for net family property calculation.

The court preferred one expert appraisal over another and determined the values of the matrimonial home and a farm property, resulting in an equalization payment payable to the applicant.

Despite the long marriage and the applicant’s role as homemaker, spousal support was denied due to the applicant’s substantial assets and investment income.

Guideline child support was ordered based on the respondent’s reduced income following job loss, and the parties were required to share section 7 expenses equally.