Family and Matrimonial Law - OCA

The Court of Appeal for Ontario dismissed the father’s appeal from a family law order that varied parenting and support arrangements.

The court found that the trial judge’s reasons were clear, sound, and based on the evidence, and that the findings were consistent with the Divorce Act.

The trial judge’s decision to grant the mother primary care and sole decision-making authority, as well as to vary child and spousal support, was upheld.

The court emphasized deference to the trial judge’s factual findings and the best interests of the children.

The appellant, Mr. Thomas, appealed the dismissal of his Hague Convention application for the return of his son, Isaiah, from Toronto to his habitual residence in Balch Springs, Texas.

The application judge had found that the appellant unequivocally acquiesced to the child's relocation.

The Court of Appeal found that the application judge erred by reversing the burden of proof, misapplying the standard of "clear and cogent evidence" for acquiescence, and failing to properly consider the appellant's subjective intention.

The Court reiterated that the standard for finding acquiescence is high and that the Hague Convention's objective is the prompt return of abducted children.

The appeal was allowed, and the child was ordered to be returned to Texas.

The appellant appealed a trial judge's decision on three issues: the inclusion of a "Maher payment" (110 gold coins) in the net family property (NFP) calculation, the failure to order an unequal division of NFP due to short marriage duration and non-disclosure of assets, and the method of payment for the gold coins.

The Court of Appeal dismissed all grounds, affirming the trial judge's decision.

It held that the Maher payment was correctly included, consistent with prior jurisprudence, and found no error in the decision not to order an unequal division given the evidence.

The court also upheld the trial judge's practical approach of deducting the Canadian equivalent of the gold coins from the equalization payment.

A procedural fairness argument was also rejected.

This motion concerned an applicant's request for an extension of time to file a notice of appeal against a family law order concerning custody, access, and child support.

The applicant had prepared the notice within the prescribed period but failed to effect service in time.

The respondent opposed the extension, citing lack of merit and prejudice to the child.

The court, applying the well-known factors for extending time to appeal, found that while the applicant had a bona fide intention, the proposed appeal lacked merit, particularly as it sought to overturn factual findings justified by the record, including breaches of prior orders and abusive communications.

Considering the child's best interests, the court dismissed the motion for an extension of time.

The respondent in an appeal sought to dismiss the appeal under Rule 2.1.01(1) of the Rules of Civil Procedure, arguing that the appellant's conduct in related lower court custody proceedings, including removing children from the jurisdiction in defiance of court orders, constituted an abuse of process.

The Court of Appeal dismissed the motion, holding that while the appellant's conduct in the Superior Court was problematic, it did not amount to an abuse of process in the context of the appeal itself.

The court clarified that Rule 2.1 is not intended to address issues of non-compliance with lower court orders unless such conduct directly abuses the appellate process.

The appellant sought to overturn a motion judge's finding that a settlement was reached in mediation and the subsequent granting of partial summary judgment.

The Court of Appeal affirmed the motion judge's decision, finding no palpable and overriding error or error in principle.

The appellate court agreed that substantial evidence supported the existence of a settlement agreement, despite the absence of written minutes, and upheld the appropriateness of partial summary judgment given the limited remaining issues.

The appeal was dismissed.

This appeal addresses whether Canadian law recognizes an Islamic bare talaq divorce, performed in Ontario and subsequently registered with Egyptian governmental agencies.

The Court of Appeal found that the motion judge erred in recognizing the divorce under s. 22(3) of the Divorce Act.

The Court clarified that administrative registration of a divorce does not equate to the "granting" of a divorce by a competent authority, as required by the Act.

Furthermore, the Court held that the parties lacked a real and substantial connection to Egypt at the time of the divorce, and that recognizing such a divorce would be contrary to Canadian public policy, particularly due to its unilateral nature and the potential for forum shopping.

The appeal was allowed, setting aside the lower court's order and allowing the appellant's spousal support claim to proceed.

This is an appeal from an order directing the payment of funds held in court (net proceeds from a home sale) to the respondent in partial satisfaction of a summary judgment against Paige Imola.

The appellant, Luigi Imola, had transferred his interest in the home to his wife, Paige Imola, years prior to avoid creditors.

He argued for a resulting trust over half the funds.

The Court of Appeal dismissed the appeal, finding that the motion judge's factual findings, including the appellant's intention to gift the property and his subsequent actions, rebutted any presumption of a resulting trust.

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 moving party sought leave to appeal a trial judge's costs order made in favour of his former spouse.

The trial judge had ordered costs to be paid from funds held in court, noting the moving party's failure to meaningfully participate in the trial and the partial success of the responding party.

The Court of Appeal dismissed the motion, finding no strong grounds to interfere with the trial judge's discretionary costs order.

The appellant appealed a motion judge's order declaring a Russian divorce invalid.

The parties were Russian citizens and permanent residents of Canada who separated in Canada in 2015.

The appellant obtained a divorce in Russia in 2016 without properly serving the respondent, who was living in Canada.

The motion judge declared the Russian divorce invalid based on lack of notice.

The appellant argued the motion judge erred by not first determining whether the parties had a real and substantial connection to Russia.

The Court of Appeal dismissed the appeal, holding that the motion judge properly focused on the denial of natural justice (lack of notice) and was not required to analyze the real and substantial connection issue first.

The appellant appealed a final order from the Superior Court of Justice (Family Court) that determined issues of property division and child and spousal support.

The appellant raised five grounds of appeal: lack of jurisdiction to grant summary judgment when a divorce claim was present, improper treatment of the matrimonial home, unfair division of household contents, mathematical errors in calculating net family property, and allegations of judicial bias.

The Court of Appeal dismissed all grounds of appeal, finding that the motion judge properly severed the divorce claim under the Family Law Rules, made no error regarding the matrimonial home, fairly divided the household contents, and appropriately addressed mathematical errors through a subsequent motion.

The court rejected unsubstantiated allegations of judicial bias.

The appellant appealed the dismissal of his motion seeking an order that his brother disclose information about their late father's assets and account for property and finances under a power of attorney.

The motion judge dismissed the application, finding the appellant lacked standing.

The Court of Appeal found the motion judge erred on the standing issue but upheld the dismissal on discretionary grounds.

The court found the parents had executed written instructions prohibiting disclosure to the appellant, and there was no evidence of improper conduct by the brother acting as attorney for property.

The appellant appealed a trial judge's order affirming the validity of a domestic contract between the parties.

The Court of Appeal found no error in the trial judge's thorough analysis and rejection of the appellant's arguments to set aside the agreement.

The appellant raised a new argument on appeal regarding waiver of spousal support rights under the Family Law Act, but this argument was not advanced at trial and was declined for consideration on appeal.

The appellant wife appealed a trial judgment concerning the disposition of approximately $53,000 in proceeds from the sale of the matrimonial home.

The trial judge found the husband was the sole owner because the wife had gifted her interest to him to avoid creditors.

The trial judge also found the wife's equalization claim was statute-barred, having fixed the date of separation at December 21, 1996, with the application issued in August 2010.

In the alternative, the trial judge found an equal division would be unconscionable due to the wife's reckless depletion of family property, the husband's payment of all acquisition costs and expenses, and the wife's abusive and controlling behaviour.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings regarding the date of separation or ownership of the matrimonial home.

The appellant appealed orders requiring him to pay retroactive and prospective spousal support based on a material change in circumstances.

The parties had entered into a separation agreement that suspended support after the appellant lost his job, but allowed for a review upon a material change.

The trial judge found a material change when the appellant obtained new employment and their daughter ceased to be a child of the marriage.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's interpretation of the agreement, her assessment of the evidence, or her application of the Spousal Support Advisory Guidelines.

Following a successful appeal under the Hague Convention ordering the return of a child to England, the appellant father sought costs of $15,000 for the appeal and $15,000 for the application hearing.

The respondent mother argued for no costs or $5,000.

The Court of Appeal awarded the appellant costs for both proceedings, fixed in the aggregate amount of $5,000 on a partial indemnity scale, balancing the need for deterrence with the relative financial situations of the parties.

The appellant appealed the dismissal of his motion to vary his spousal and child support obligations and rescind arrears.

The respondent requested the court refuse to hear the appeal due to the appellant's willful refusal to pay support, but the court proceeded on the merits.

The appellant argued for a reduced standard of review because the motion judge's findings were based on a written record.

The Court of Appeal rejected this argument, applying the palpable and overriding error standard from Housen v. Nikolaisen, and found no basis to interfere with the motion judge's factual and credibility findings.

The appeal was dismissed with costs.

The appellant appealed an order dismissing her application for spousal support and declaring her a vexatious litigant under s. 140(1) of the Courts of Justice Act.

The respondent moved to quash the appeal on the basis that the appellant failed to obtain leave to appeal.

The Court of Appeal held that leave is not required to appeal a vexatious litigant order itself.

On the merits, the Court set aside the vexatious litigant order because the appellant was not given a fair hearing on the issue.

However, the Court upheld the summary dismissal of the spousal support claim, finding no genuine issue for trial given the lack of evidence of economic disadvantage or need arising from the marriage.

The appellant appealed the equalization payment, spousal support, access, and costs components of a trial judgment.

The Court of Appeal varied the equalization payment to $64,000 on consent, fixed spousal support at $500 per month for three years on consent, upheld the access order based on an assessor's recommendation, and varied trial costs to $32,000.

The parties also resolved outstanding support arrears and ongoing child support.

The appeal was allowed in part.