Family and Matrimonial Law - OCA

The self-represented appellant mother sought leave to appeal a costs order made following a lengthy family law trial in which the respondent father was largely successful.

The trial judge had awarded the father net costs of $20,000 after setting off support arrears, noting the father's reasonable offers to settle and the mother's bad faith conduct.

The Court of Appeal found no error in principle and held the costs award was not plainly wrong.

Leave to appeal the costs order was denied.

This appeal concerns the costs consequences of protracted family law litigation between K.K. (the husband) and M.M. (the wife).

The Court of Appeal addresses whether the trial judge erred in awarding full recovery costs to the wife, staying prior costs orders made in favour of the husband, and whether there was a reasonable apprehension of bias.

The majority upholds the trial judge’s costs award and the stay of prior costs orders, finding exceptional circumstances due to the husband’s bad faith.

A dissent would reinstate the stayed costs orders, holding that the trial judge exceeded her authority under s. 106 of the Courts of Justice Act.

This appeal concerned an order striking the appellant's pleadings in a family law application due to repeated non-compliance with financial disclosure orders.

The appellant argued the motion judge misinterpreted his position, failed to consider alternative remedies, and did not account for his personal circumstances.

The Court of Appeal dismissed the appeal, emphasizing the fundamental duty of financial disclosure in family law and finding that, given the appellant's persistent failure to comply, striking the pleadings was an appropriate and necessary remedy under the Family Law Rules.

This is a second appeal concerning a child protection order, specifically the "no access" portion of the order.

The mother (appellant) sought a rehearing or virtual access to her child, D.R., who was found in need of protection due to serious injuries inflicted by a parent.

The Court of Appeal upheld the appeal judge's decision to deny access, finding no palpable and overriding error in the best interests analysis under the Child, Youth and Family Services Act.

The court emphasized the significant risk that led to the protection finding and the lack of a beneficial and meaningful relationship between the mother and child, noting the child's thriving in foster care.

The appellant wife appealed a trial decision concerning the division of net family property and claims for spousal and child support following a five-year marriage.

The appeal raised issues regarding the beneficial ownership of properties, the application of resulting trust principles, the deductibility of alleged loans from family members, and the dismissal of support claims.

The Court of Appeal found no errors of law or palpable and overriding errors in the trial judge's findings of fact or application of legal principles, noting that the trial judge's conclusions were well-grounded in the evidence and clearly explained.

The appeal was dismissed.

This is a costs endorsement from the Court of Appeal for Ontario.

The appellant was ordered to pay the respondent fixed costs of $20,000, inclusive of HST and disbursements, with the provision that these costs could be considered support payments for Family Responsibility Office purposes.

The appellant appealed an order striking his pleadings in a family law application regarding child support for failing to comply with financial disclosure orders.

The Court of Appeal dismissed the appeal, finding the remedy was not excessive given the appellant had breached six previous orders and received multiple warnings.

The court also upheld the motion judge's award of full recovery costs based on a finding of bad faith.

The appellant sought an assessment of 30 accounts totalling over $600,000 from his former counsel over approximately two and a half years of representation in a family law proceeding.

Of these accounts, 26 were paid in full and four remained unpaid.

The application judge dismissed the application, finding that the appellant failed to establish special circumstances warranting assessment of the paid accounts under section 11 of the Solicitors Act, and declined to exercise inherent jurisdiction to assess the unpaid accounts.

The Court of Appeal upheld this decision, finding no error in the application judge's factual findings or legal analysis.

The appellant appealed a motion judge's finding of civil contempt for breaching a parenting order.

The motion judge found that the appellant had intentionally picked up the children from school on a day when he was not entitled to do so, contrary to the court order governing transitions.

While the Court of Appeal found that the three elements of civil contempt were established beyond a reasonable doubt, it held that the motion judge erred in law by failing to consider whether to exercise her discretion to decline to make a contempt finding.

The Court emphasized that the contempt power is discretionary and should be exercised as a last resort, particularly in high-conflict matrimonial cases involving children.

The appeal was allowed and the contempt finding was set aside.

The appellant appealed a summary judgment decision enforcing a Separation Agreement dated October 30, 2012, between the parties.

The appellant sought to set aside the agreement, alleging non-disclosure of assets by the respondent and arguing he did not understand the nature or consequences of the agreement.

The motion judge found no basis to set aside the agreement under section 56(4) of the Family Law Act.

The Court of Appeal upheld the decision, finding that the motion judge properly applied the legal test, made findings open to him, and that the parties were sophisticated individuals who had received independent legal advice.

The court noted that both parties had failed to fully disclose assets, making the appellant's claim disingenuous, and that the agreement itself contained acknowledgments of sufficient disclosure.

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 appellant appealed the dismissal of three overlapping actions brought under Rule 2.1.01 of the Rules of Civil Procedure.

The actions arose from a family dispute concerning the appellant's exclusion from his grandfather's will and alleged undue influence and fraudulent conduct by family members and lawyers.

The motion judge dismissed the actions as frivolous and vexatious.

The appellant raised three grounds of appeal: (1) the motion judge failed to make explicit findings that the proceedings were frivolous, vexatious, or an abuse of process; (2) the harassment and defamation claims were supported by the pleadings; and (3) the motion judge failed to explain why the statements of claim could not be amended.

The Court of Appeal dismissed all three grounds of appeal and upheld the dismissals.

An appeal from a motion judge's order staying custody proceedings in Ontario and ordering the return of three adolescent children to Nigeria, their place of habitual residence.

The motion judge found that an Ontario court lacked jurisdiction under section 22 of the Children's Law Reform Act because the children were habitually resident in Nigeria and a custody application was pending there.

The Court of Appeal allowed the appeal, finding that although section 22 did not provide jurisdiction, section 23 of the CLRA permitted Ontario to exercise jurisdiction because the children would suffer serious harm if returned to Nigeria.

The serious harm was based primarily on evidence of physical discipline with objects by the father and the children's mature objections to returning.

The court granted interim custody to the mother with generous access to the father pending a full hearing on the merits.

The appellant appealed the order of a motion judge dismissing his motion on the grounds that he lacked standing due to non-compliance with an earlier order by Hebner J. The earlier order required the appellant to pay $17,803 by December 31, 2016, to bring his child support into good standing, failing which his Answer and affidavits would be struck.

The appellant failed to comply with the deadline and did not appeal the order.

Instead, he brought a motion to set aside the order before the motion judge.

The Court of Appeal dismissed the appeal, finding that Hebner J. properly applied the test for striking pleadings and that the motion judge correctly determined the appellant had no standing in the proceeding.

The appellant appealed a trial judge's finding that advancements of funds from his father totalling $157,414 were gifts rather than loans.

The advancements were invested in the matrimonial home held in the appellant's name.

The characterization of these funds as gifts or loans directly affected the calculation of the appellant's net family property in the family law proceeding.

The trial judge found the advancements were gifts and therefore included in the appellant's net family property.

The appellant argued the trial judge reversed the burden of proof and erred in fact and law.

The Court of Appeal upheld the trial judge's decision, finding no reversals of the burden of proof and no palpable and overriding errors in the evaluation of evidence.

The appellant appealed the dismissal of his civil action seeking damages against his former spouse and her parents for alleged fraudulent concealment of assets.

The motion judge dismissed the action as an abuse of process, finding that the appellant's claim for damages was premised on an alleged entitlement to an equalization payment governed by the Family Law Act, which can only be pursued in family law proceedings.

The Court of Appeal upheld the dismissal, noting that while the appellant's equalization claim was time-barred under the Family Law Act, he was not necessarily without recourse if he could satisfy the criteria for an extension of time and pursue the matter through family law proceedings.

The appellant appealed a motion judge's decision to change a final custody order that had granted him sole custody of his two sons and required them to attend a reunification program.

The younger son had repeatedly run away and refused to live with the appellant or attend the program.

The Court of Appeal upheld the motion judge's finding that the son's extreme resistance constituted a material change in circumstances and that it was no longer in his best interests to enforce the custody order.

The court also dismissed the son's cross-appeal seeking a declaration that he had withdrawn from parental control, finding the motion judge's order that no person had custody or access rights over him was sufficient.

The appellant appealed a decision placing her children under Crown wardship without access, arguing that the hearing judge intervened improperly by extensively questioning witnesses.

The Court of Appeal dismissed the appeal, finding that in child protection proceedings, the paramount consideration is the best interests of the child.

The hearing judge was justified in seeking further information to clarify unusual testimony, and the questioning did not reach the level of showing a reasonable apprehension of bias.

The appellant, who was adopted as an infant, sought to discover the identity of her birth father.

She challenged the constitutionality of the disclosure provisions of the Child and Family Services Act and the Vital Statistics Act, arguing they violated her rights under sections 7 and 15 of the Charter.

The Court of Appeal upheld the application judge's decision, finding that the provisions did not violate equality rights as they did not make stereotypical assumptions, nor did they infringe section 7, as unconditional disclosure of third-party identifying information is not a principle of fundamental justice.

The parties built a new matrimonial home on property owned by the appellant prior to the marriage.

The cost of construction significantly exceeded the market value of the property, leaving it subject to substantial debt.

The trial judge declared the respondent a fifty percent equitable owner based on resulting trust principles and ordered the appellant to pay $160,000 if he remained in the home, explicitly departing from the equalization provisions of the Family Law Act.

The Court of Appeal allowed the appeal, holding that the trial judge erred in failing to follow the statutory equalization process.

Under the Family Law Act, the appellant's net family property was zero, meaning no equalization payment was owed.

The respondent's cross-appeal for unjust enrichment was dismissed as the appellant was not enriched.