Family and Matrimonial Law - OCA

The Court of Appeal for Ontario dismissed the appeal of Aliamisse O. Mundulai from a final order in a family law dispute with Ying Huang.

The appeal concerned parenting, property, and financial issues following the parties' separation.

The court found no reversible error in the trial judge’s decisions regarding the child’s therapy, beneficial ownership of an office unit, and the treatment of the respondent’s pension for equalization purposes.

Costs were awarded to the respondent.

This appeal concerned the jurisdiction of the Ontario court in a family law dispute over parenting time, decision-making responsibility, and child support.

The appellant father argued that the motion judge erred in finding the child habitually resident in Ontario, claiming he did not tacitly consent or acquiesce to the child's move from Montreal to Ottawa.

The Court of Appeal dismissed the appeal, finding that despite a minor error by the motion judge in considering post-application conduct, sufficient evidence supported the finding of the father's tacit consent or acquiescence to the child's habitual residence in Ontario.

The appellant sought to appeal a trial judge's decision regarding spousal support, arguing that the indefinite support at the high end of the Spousal Support Advisory Guidelines, subject to review, constituted an error.

The Court of Appeal for Ontario dismissed the appeal, affirming the significant deference owed to family support decisions.

The court found no material error, serious misapprehension of evidence, or error in law in the trial judge's reasoning or result, noting that the appellant's objection primarily concerned the weighing of factors, which is not a basis for appellate intervention.

The parties separated in 2019.

After two years of the appellant failing to provide financial disclosure despite multiple court orders, his pleadings were struck and the matter proceeded to an uncontested trial.

The trial judge imputed an annual income of $150,000 to the appellant for child support and ordered the matrimonial home transferred to the respondent to satisfy the equalization payment.

The appellant appealed, arguing the process was unfair and the reasons inadequate.

The Court of Appeal dismissed the appeal, finding the uncontested trial was a proper consequence of the appellant's blatant non-disclosure and the trial judge's reasons were sufficient for appellate review.

This appeal concerned the jurisdiction of an Ontario court to make a child support order under the Interjurisdictional Support Orders Act, 2002 (ISO Act) when a foreign support order from Finland already existed, but its registration in Ontario had been set aside due to the payor's fraudulent misrepresentations.

The Superior Court had quashed the Ontario Court of Justice's order for lack of jurisdiction, arguing that two valid support orders could not coexist.

The Court of Appeal allowed the appeal, holding that section 21 of the ISO Act explicitly grants Ontario courts jurisdiction to hear a new support application in such circumstances, especially given the payor's deceptive conduct.

The court emphasized the ISO Act's purpose of facilitating support enforcement and dismissed concerns about potential double recovery.

This appeal concerned a dispute between former spouses over an Ontario condominium property.

The appellant argued the respondent's claim was a statute-barred equalization claim under the Family Law Act, and that Ontario lacked jurisdiction or the matter was res judicata due to prior Saudi Arabian annulment proceedings.

The respondent asserted a resulting or constructive trust claim.

The Court of Appeal upheld the motion judge's decision, finding that Ontario had jurisdiction as Saudi Arabian courts declined jurisdiction over foreign property and their annulment proceedings did not resolve property issues.

The court further held that the claim was a distinct equitable trust claim, not an equalization claim, and therefore the ten-year limitation period under the Real Property Limitations Act applied, not the two-year period under the Family Law Act.

The appeal and a motion for leave to appeal costs were dismissed.

The moving parties, who had cared for an Indigenous child since shortly after birth, sought a stay of a Superior Court decision that struck their custody application and permitted the children's aid society to relocate the child to a different province.

The Court of Appeal granted the stay pending the final determination of the appeal, finding that there was a serious issue to be tried regarding the validity of out-of-court customary care agreements and the best interests of the child.

The court concluded that the child would suffer irreparable harm if removed from her long-term caregivers before the appeal was resolved, and that the balance of convenience favoured maintaining the current placement with conditions to ensure ongoing connection to the child's Indigenous culture and family.

The moving party filed a motion for leave to appeal in the Court of Appeal that should have been filed in the Divisional Court.

He sought an order under s. 110 of the Courts of Justice Act transferring the file to the Divisional Court.

The responding party opposed the transfer and requested the motion be dismissed as frivolous and vexatious.

The Court of Appeal dismissed the transfer motion, finding there was no realistic chance the Divisional Court would grant leave to appeal and that a transfer would cause undue prejudice and delay to the responding party.

The appellant appealed from a trial judge's order declaring that the respondent Mikhail Malkov was the sole beneficial owner of a property in Thornhill and requiring the appellant and her former husband to transfer all their right, title and interest in the property to Mikhail.

The trial judge had found that the appellant and her former husband held title to the property on a resulting trust in favour of Mikhail.

The sole ground of appeal was that the trial judge conducted the proceedings unfairly by refusing to allow the appellant to call a lawyer as a witness.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised her discretion in refusing to allow the reopening of the case.

The appellant appealed a motion judge's decision dismissing his second motion to change child and spousal support and granting the respondent's cross-motion.

The appellant had failed to produce required financial disclosure, including income tax returns, despite multiple court orders over two years.

The motion judge dismissed the motion based on this failure to disclose.

The appellant sought to introduce his 2015 and 2016 tax returns as fresh evidence on appeal.

The Court of Appeal declined to admit the fresh evidence and upheld the motion judge's decision, finding the appellant had not met the test for introducing fresh evidence and had failed in his fundamental duty to disclose financial information.

The court rejected the appellant's procedural fairness arguments, noting he had benefitted from judicial indulgences rather than suffered unfairness.

The appellant appealed from trial decisions determining unresolved issues in a family law matter, including spousal support duration and quantum, child and spousal support arrears, equalization of post-valuation-day increases in corporate shares, disposition of a recreational property, and costs.

The trial judge determined the appellant's income for support purposes by excluding losses from a corporation used to fund his personal lifestyle, assessed the value of corporate shares considering personal benefits provided by the corporation, ordered payment for a recreational property, and awarded substantial costs to the respondent based on the appellant's unreasonable conduct and inadequate disclosure.

The Court of Appeal upheld all findings.

The moving parties sought to review an order of a single judge dismissing their motion to expedite the hearing of two leave to appeal motions.

The underlying matters related to a Crown wardship order and a Habeas Corpus application.

The moving parties argued that as Aboriginal people, they had a right to have matters heard in a court of equity applying Aboriginal law, and that the children's aid society had no authority to apprehend their children.

The Court of Appeal dismissed the motion, finding no basis to interfere with the single judge's procedural ruling that the matters were not properly before the court.

The appellant appealed a default judgment ordering him to pay a lump sum spousal support award of $193,385, secured by a charge on his property, after his pleadings were struck for failing to fulfill undertakings.

The Court of Appeal dismissed the appeal, finding sufficient evidence to support the application judge's order, particularly given the appellant's abusive behaviour, intention not to pay support, and probable non-compliance with court orders.

The Director of the Ontario Disability Support Program appealed a decision holding that child support payments made to the mother of a disabled adult were not 'income' attributable to the disabled adult under the ODSPA.

The Court of Appeal dismissed the appeal, finding that characterizing child support paid to a custodial parent as the disabled adult's income would undermine the disabled adult's right to apply independently for benefits and would unfairly discriminate against disabled children of separated parents.

The child support payments are not payments made 'to or on behalf of or for the benefit of' the disabled adult until the mother actually uses them for the adult's benefit, at which point exemptions for disability-related expenses may apply.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding no error in the lower court's conclusion that disclosure had been made and there was no material change of circumstances.

The appellant appealed a comprehensive decision in a matrimonial proceeding on a single issue: whether the application judge erred in finding issue estoppel regarding a potential variation of support arrears for the 1995-1999 period.

The respondent conceded the error.

The Court of Appeal agreed, allowing the appeal on consent and ordering no costs.

The appellant appealed his sentence after forging his wife's signature 26 times over eight months to withdraw $114,994.07 from her RRSP account, leaving her with a $25,000 tax debt.

The sentencing judge rejected the appellant's explanation for the use of the funds and concluded that a conditional sentence was inappropriate given the breach of trust, planning, and need for denunciation and general deterrence.

The Court of Appeal found no error in the sentencing judge's analysis or in the restitution order, noting that any overlapping issues could be addressed in family law proceedings.

The appeal was dismissed.

The appellant appealed an order increasing spousal support.

The Court of Appeal found that the motion judge misapprehended the evidence regarding whether there was a material change in circumstances.

Specifically, the motion judge failed to address the appellant's explanation for understating his income at the 2003 trial, whether an increase in income alone justified increased support, and how the respondent's ability to earn income affected the quantum.

The appeal was allowed in part, setting aside the spousal support order and remitting the issue for a new hearing.

The appellants, foster parents of three young siblings, appealed a Superior Court decision dismissing their application for an order granting them residence of the children pending the final determination of child protection proceedings.

The children had been apprehended over two years prior, but no protection finding had yet been made.

The foster parents argued that the inordinate delay created a gap in the Child and Family Services Act, justifying the Superior Court's exercise of its parens patriae jurisdiction.

The Court of Appeal dismissed the appeal, holding that the delay did not bring the matter outside the ambit of the legislation, and that the Ontario Court of Justice retained jurisdiction to determine the children's best interests, including the impact of the delay and their attachments to the foster parents.

The respondent was in default of a child support order and his driver's licence was suspended after the Director sent a First Notice to his address on record.

The respondent brought a motion to reinstate his licence, claiming he did not receive the notice.

The motions judge ordered the reinstatement of the licence for 90 days to allow the respondent to bring a motion to vary support.

The Director appealed.

The Court of Appeal allowed the appeal, finding that the Director proved proper service of the First Notice in accordance with the legislation.

The motions judge had no jurisdiction to order reinstatement or to make a refraining order outside the statutory 30-day period.