Michael Harris Tweyman

The parties settled their matrimonial litigation in 2008 with a consent order providing for $3,000 monthly spousal support with no termination date.

In 2010, the respondent sought to terminate support and obtain child support, citing a decrease in his income and the appellant's unexplained accumulation of wealth.

The trial judge found a material change in circumstances, terminated spousal support, and ordered the appellant to pay child support.

On appeal, the Court of Appeal upheld the finding of a material change but found the trial judge erred by failing to consider the circumstances at the time of the original consent order, effectively rescinding rather than varying it.

The appeal was allowed and a new trial ordered.

The appellant appealed a final order terminating the respondent's obligation to pay spousal support to the Divisional Court.

The Divisional Court determined it lacked jurisdiction under section 19 of the Courts of Justice Act, as the order appealed from did not order the payment of money or dismiss a claim for the payment of money.

The appeal was transferred to the Court of Appeal for Ontario.

Following dismissal of an application brought under the Arbitration Act, 1991 seeking to set aside an arbitrator’s jurisdiction in a spousal support mediation-arbitration process, the court addressed the issue of costs.

The respondent sought substantial indemnity costs while the applicant argued for partial indemnity.

The court applied the principles governing costs under s. 131 of the Courts of Justice Act and rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality and the result achieved.

The court found the application unreasonable, particularly given the applicant’s contractual commitment to the mediation-arbitration process and a rejected settlement offer.

Substantial indemnity costs were awarded, though the amount claimed was reduced as some time billed was excessive.

The appellant father appealed a decision ordering ongoing and retroactive child support for an adult child with severe disabilities.

The appellate court upheld the finding that the child qualified for support under s. 31 of the Family Law Act because her participation in an adapted educational program constituted full-time education in light of her medical limitations.

The court also upheld the retroactive support award based on the father’s blameworthy conduct in failing to disclose income increases, consistent with the principles in DBS v. SRG.

However, the court held that the impact of the adult child’s Ontario Disability Support Program benefits on the quantum of support had not been properly analyzed and required further evidentiary consideration.

That issue was remitted to the Ontario Court of Justice for determination while the remainder of the appeal was dismissed.

In a family law appeal concerning child support for an adult child with significant health issues, the respondent sought to raise a constitutional challenge to s. 31 of the Family Law Act for the first time on appeal.

The challenge alleged unequal treatment between children of unmarried parents under the Family Law Act and children of married parents under the Divorce Act.

The court considered the test governing whether new constitutional issues may be raised on appeal, including whether there was a sufficient evidentiary record, whether the issue had been omitted for tactical reasons, and whether injustice would result from refusing to hear it.

The court found that the issue was foreseeable, that a sufficient factual foundation existed, and that the delay was largely attributable to representation issues.

The respondent was therefore permitted to raise the Charter issue and the appeal was directed to proceed with further case management.

The moving party sought leave to appeal an order granting the responding party interim disbursements of $25,300.99 for legal fees, payable from the proceeds of the sale of the matrimonial home.

The application judge had ordered the disbursement to 'level the playing field' after the moving party's legal aid lien was paid from the proceeds.

The Divisional Court granted leave to appeal, finding conflicting decisions on whether interim disbursements can be ordered solely for legal fees and whether they should be paid from funds over which the opposing party has an arguable claim, particularly when the party receiving the funds will likely owe an equalization payment.