Michael Zalev

The Court of Appeal for Ontario considered whether the application judge erred in refusing to order the return of a child to the United Kingdom under the Hague Convention, on the basis that the left-behind parent had consented to or acquiesced in the child’s retention in Canada.

The Court found that the application judge conflated consent to future relocation with consent to the present retention, and that the evidence did not support a finding of consent or acquiescence to the wrongful retention.

The appeal was allowed and the return of the child to the U.K. was ordered, with undertakings imposed to protect the child’s best interests.

The appellant mother appealed an interim order granting the respondent father equal parenting time with their two-year-old child.

The mother argued the motion judge erred by ignoring the status quo, minimizing allegations of family violence, and failing to adequately consider the child's medical conditions.

The Divisional Court dismissed the appeal, finding that the motion judge made no palpable and overriding errors in assessing the child's best interests under the Divorce Act.

The court held that the motion judge properly considered the father's willingness to care for the child, the unlikelihood of family violence recurring post-separation, and the maximum contact principle.

The moving party sought leave to appeal the decision of the lower court.

The Divisional Court granted the motion for leave to appeal, ordered the appeal to be expedited, and reserved the issue of costs to the panel deciding the appeal.

This is an appeal from a family proceeding where the appellant sought to overturn the motion judge's decision to terminate spousal and child support obligations for the respondent due to his retirement, and to increase her spousal support.

The Court of Appeal upheld the motion judge's findings that the respondent's retirement was reasonable, that spousal support should be terminated due to material change in circumstances and the appellant's improvident financial decisions, and that child support for the youngest child should end by August 2023.

The court also refused leave to appeal the costs award.

This decision addresses the costs arising from a Motion to Change brought by the respondent, John Craig Fielding, to terminate his child and spousal support obligations following his retirement.

The applicant, Victoria Fielding, opposed the motion and sought to increase spousal support and continue child support.

The court found the respondent to be the significantly more successful party on the Motion to Change, particularly regarding the termination of spousal support due to his reasonable retirement.

While the applicant had some success on child support issues, her overall conduct was deemed unreasonable, including attempts to re-litigate issues under the guise of clarification.

Consequently, the court ordered the applicant to pay the respondent 80% of his overall costs, fixed at $295,000, enforceable by the Family Responsibility Office.

The Applicant sought an order extending the deadline to apply for an openness order under s. 196(1) of the Child, Youth and Family Services Act, 2017, relying on the court's parens patriae jurisdiction.

The motion was brought due to a procedural error where the application was served but not issued within the statutory 30-day limit.

The Children's Aid Society consented, while the Office of the Children's Lawyer did not oppose the exercise of parens patriae but required the legal test to be met.

The court dismissed the motion, finding no unintentional legislative gap in the Act and concluding that exercising parens patriae jurisdiction was not necessary to protect the child's best interests, as the child had already filed their own timely openness application.

The appellant father appealed a final restraining order granted by a motion judge during a motion for temporary relief.

The respondent mother had sought a temporary restraining order after being violently attacked by the appellant's father.

Neither party requested a final restraining order, and both were content with the temporary order in place.

The Divisional Court allowed the appeal, finding that the motion judge erred in law by granting a final order on an interim motion without giving the parties an opportunity to make submissions.

The temporary restraining order was reinstated.

This case involved a dispute over the accuracy and enforceability of Minutes of Settlement concerning the equalization payment for two properties.

The applicant husband sought to enforce the Minutes as written, which stipulated a $520,000 payment from the respondent wife.

The respondent wife brought a cross-motion for rectification, arguing the amount was a mistake and should have been $260,000 (half the agreed difference in value).

The court found the Minutes ambiguous and that there was no meeting of the minds on the fundamental term of the payment amount.

Consequently, the applicant's motion to enforce was dismissed, and the respondent's cross-motion for rectification was also dismissed due to a lack of a prior definite agreement.

The court set aside the disputed Minutes of Settlement and confirmed the validity of an earlier set of Minutes.

This decision addresses a motion to change brought by the respondent, Craig, to terminate child and spousal support obligations following his retirement, and a cross-motion by the applicant, Victoria, to increase spousal support and continue child support.

The court found Craig's retirement at age 64 to be reasonable and a material change in circumstances, despite Victoria's arguments that it was premature.

The court also acknowledged the termination of Victoria's long-term disability benefits as a material change.

Ultimately, spousal support for Victoria was terminated effective December 31, 2021, due to her significant net worth and perceived improvident financial management, emphasizing the objective of self-sufficiency.

Child support for Natalie was continued until August 31, 2023, for her graduate studies, but not beyond, and specific s. 7 expenses were capped and apportioned based on previous orders.

The applicant sought temporary and retroactive spousal support, full financial disclosure, and permission to retain a financial expert.

The respondent opposed, arguing a settlement conference was set and the applicant had withdrawn significant funds, seeking termination or nominal spousal support.

The court granted interim monthly and retroactive lump sum spousal support to the applicant, ordered full financial disclosure from the respondent, and permitted the applicant to retain an expert.

The respondent's requests to terminate or reduce support were denied due to his failure to provide disclosure and concerns about his financial transparency.

Costs were awarded to the applicant.

The appellant sought to set aside an administrative dismissal of her spousal support application, which was initially refused by the motion judge.

The Court of Appeal allowed the appeal, finding that the motion judge erred in principle by treating the factors for setting aside a dismissal as rigid hurdles, misanalyzing prejudice, and failing to properly consider the policy favoring determination on merits.

The Court emphasized that lawyer inadvertence and the ability to restart the claim without limitation period expiry weighed against upholding the dismissal.

The dissenting opinion argued for deference to the motion judge's discretion and emphasized the importance of enforcing Family Law Rules timelines to combat delay.

The appellant mother sought to change a custody order following her relocation from the Niagara region to the Ottawa area.

The trial judge rejected a proposed settlement, dismissed the motion to change, and ordered the children's primary residence to remain with the respondent father in Niagara, a decision upheld by the Court of Appeal.

One week before the Supreme Court hearing, the parties jointly advised that changes had occurred affecting the record, including that the daughter had been residing in Ottawa for over a year.

The parties had not filed a motion for new evidence regarding the children's current best interests, leaving the record incomplete.

The Court unanimously dismissed the appeal without costs, directing any ongoing dispute to be resolved in the Superior Court through a variation order.

This appeal addressed whether pension payments divided at source for family law purposes can continue to a non-member spouse's estate after their death for the balance of the retired member spouse's life.

The motion judge had ruled this was precluded by the Pension Benefits Act (PBA).

The Court of Appeal disagreed, finding that nothing in the PBA, Family Law Act (FLA), or the Family Law Matters Regulation (O. Reg. 287/11) prevents such an arrangement.

The court emphasized that the "Family Law Matters" sections of the PBA (ss. 67.1-67.9) and the Regulation govern these issues, not general pension provisions.

The appeal was allowed, clarifying that such continuation is permissible if provided for by agreement, court order, or arbitration award.

The applicant wife brought a motion to remove the parties' family law arbitrator, alleging a reasonable apprehension of bias and unequal treatment under the Arbitration Act, 1991.

The wife's complaints stemmed from a series of procedural and costs awards made by the arbitrator during a high-conflict dispute over child support and parenting.

The court dismissed the motion, finding that the arbitrator's decisions were balanced and contextually appropriate, and that the wife's dissatisfaction with the outcomes did not meet the extremely high evidentiary threshold required to establish a reasonable apprehension of bias.

The appellant father appealed the dismissal of his motion to prevent his daughter from changing elementary schools to a Catholic school, and the associated costs order.

The respondent mother, who had sole decision-making authority, sought to enroll their daughter in the local Catholic school due to bullying at the current school and the academic superiority of the new school.

The motion judge found the mother was committed to raising the daughter in the Jewish faith and had secured exemptions from religious instruction at the Catholic school, thus finding no breach of the prior order for the daughter to be raised in the Jewish faith.

The Court of Appeal found no reversible error in the motion judge's decision or costs award, dismissing the appeal.

The applicant brought a motion to have the net sale proceeds of two cottage properties paid to the Family Responsibility Office to satisfy approximately $480,000 in spousal support and costs arrears owed by the respondent.

One property was owned by the respondent personally, and the other by his closely-held corporation.

The court found that the respondent had not established a prima facie case to vary his support obligations and ordered the proceeds of his personal property released.

Furthermore, the court applied the test for piercing the corporate veil, finding that the respondent exercised complete control over the corporation and used it to unjustly deprive the applicant of her support entitlements.

The court ordered the proceeds from both properties to be paid to the applicant.

The payor brought a motion under Rule 25(19) of the Family Law Rules to set aside a Final Default Order that fixed his spousal support arrears at over $480,000 and ordered incarceration in the event of future default.

The payor argued he did not receive adequate notice of the remote default hearing and was unable to attend due to age and health concerns amid the COVID-19 pandemic.

The court applied the Mountain View Farms factors and found that the payor had received adequate notice, simply chose to ignore the proceeding, and failed to establish an arguable case on the merits regarding his inability to pay.

The motion was dismissed.

The applicant brought a motion to transfer the respondent's motion to change spousal support from Hamilton to Milton, where a related proceeding between the parties was already ongoing.

The respondent had previously commenced and withdrawn a similar motion in Milton, incurring significant unpaid costs, before starting fresh in Hamilton.

The court granted the transfer, finding it substantially more convenient and necessary to avoid a multiplicity of proceedings, inconsistent findings, and the waste of judicial resources, particularly given the respondent's history of litigation misconduct.

The appellant appealed the dismissal of his action, which was dismissed after he failed to comply with two last-chance orders requiring disclosure and the payment of outstanding costs.

The Court of Appeal found no dispute regarding the non-compliance and noted the appellant failed to identify any errors that would permit appellate intervention.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed an order declaring a 2015 settlement agreement to be a binding separation agreement.

The appellant argued for the first time on appeal that a provision requiring expert review of the agreement's impact on their disabled child's ODSP eligibility created an implied right to terminate the agreement, and that the court should have exercised its discretion not to enforce it.

The Court of Appeal dismissed the appeal, declining to entertain novel arguments not raised before the motion judge and finding no basis to interfere with the enforcement of the agreement.