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.

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.

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 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.

This appeal concerns a motion to change a custody and access order.

The trial judge rejected a proposed settlement negotiated by the parties during trial without providing reasons, then proceeded to hear the trial and rendered a decision maintaining the children's primary residence with the respondent in the Niagara region rather than allowing them to move to Ottawa with the appellant.

The majority upheld the trial judge's decision on the merits, finding that although the trial judge erred in failing to provide reasons for rejecting the settlement, the findings made after trial confirm the custody order was in the children's best interests.

The majority reduced the costs award from $40,000 to $30,000.

Justice Nordheimer dissented, arguing that the trial judge's knowledge of the settlement terms compromised his impartiality and that the settlement should have been approved.

The applicant mother (C.A.) brought a motion to strike the respondent father's (K.G.) motion to change a 2014 final court order.

K.G.'s motion sought to terminate spousal support, reduce child support, change primary residence of children, and set support arrears to zero.

C.A. alleged K.G. had a long-standing pattern of non-compliance with court orders and disclosure obligations, including significant support arrears and failure to maintain life insurance.

The court reviewed K.G.'s history of non-compliance, inconsistent financial disclosure, and evidence from his former spouse (H.W.) which contradicted his financial claims.

Applying Family Law Rule 1(8)(c) and appellate guidance, the court found exceptional circumstances justifying striking K.G.'s motion to change, emphasizing the fundamental duty of financial disclosure and the "real harm" caused by persistent non-compliance.

Alternative remedies were deemed insufficient given K.G.'s repeated failures.

In this matrimonial appeal, the husband challenged a motion judge's order allowing the wife to amend her notice of motion to request a set-off of costs and interest owed by the wife against accumulated spousal support and costs owed by the husband.

The motion judge set off $331,533.54 against $479,130.91, resulting in a net amount of $147,597.37 owing from the husband to the wife.

The husband argued that set-off was not available in law and usurped the jurisdiction of the Family Responsibility Office.

The Court of Appeal dismissed the appeal, finding that the amendment was appropriately allowed under the Family Law Rules and that set-off was available under section 111 of the Courts of Justice Act.

The moving party (father) sought costs of $669,000 following a successful motion to change child and spousal support.

The responding party (mother) had unsuccessfully sought to reopen numerous issues from a prior trial, alleging the moving party had significant unreported cash income.

The court found the responding party acted unreasonably, though not in bad faith, and that the moving party's offer to settle met the requirements of Rule 18(14).

Applying principles of proportionality and reasonableness, the court awarded the moving party $500,000 in costs, declining to order full recovery or to make the costs enforceable as support.

This endorsement addresses a motion brought by the applicant, Delia Joan Berta, seeking to compel further financial disclosure from the respondent, Raymond Louis Berta, in the context of his motion to change a final spousal support order.

The court ordered the respondent to produce various financial documents, including bank statements, credit card statements, line of credit statements, loan applications and rejection notices, corporate minute books for specific entities, and proof of car loan payoff.

However, the court declined to order further disclosure related to the respondent's expert witness, finding no reasonable grounds to suspect interference with the expert's independence, as per the test in Moore v. Getahun.

The motion was allowed in part, with no costs ordered due to divided success.

The parties, both physicians, engaged in highly conflicted litigation over child and spousal support following their divorce.

The father brought a motion to change child support as the children commenced university, and the mother sought to increase spousal support and impute significant unreported cash income to the father.

The court rejected the mother's expert evidence on imputing income due to bias and errors, preferring the father's expert.

The court established a framework for child support while the children attend university, ordered the father to pay minor arrears for table and s. 7 expenses, and dismissed the mother's claim for increased spousal support, finding no material change in circumstances.