Family and Matrimonial Law - OCA

The appellant mother appealed an order dismissing her appeal from a child protection disposition making the child a Crown ward without access.

She alleged numerous palpable and overriding errors relating to the child’s behavioural problems, her parenting abilities, mental health, judgment, and the child’s dietary needs, and argued material evidence had been ignored.

The Court of Appeal held that the trial judge gave extensive and considered reasons, that any misstatements did not amount to palpable and overriding error, and that the evidence of the infant mental health counsellor had been considered.

Applying a deferential standard of review in child welfare matters, the court found no basis to interfere.

The appellant appealed the dismissal of post-divorce enforcement and contempt motions concerning unpaid s. 7 child-related expenses and a life insurance obligation intended to secure support.

The Court of Appeal held it was open to the motion judge to conclude that the respondent had reasonably complied with the s. 7 expense provisions and that substantial indemnity costs were not mandated despite wording in the divorce order, because costs remained discretionary.

The court also upheld the dismissal of the contempt motion, applying the civil contempt test and finding no basis to interfere with the motion judge's acceptance of evidence that the respondent's medical condition prevented him from obtaining traditional life insurance.

Although the court stated that the motion judge erred in saying there was no legal basis for a dependent to insure the payor's life under the Insurance Act, the appellant's proposed alternate insurance remedy required a change order and the fresh evidence tendered on appeal was inadmissible.

Following a family law appeal in which the court removed a ten-year cap on spousal support and made support indefinite subject to variation on a material change in circumstances, the parties disputed the wording of the resulting order.

The respondent sought to preserve a deeming provision from the trial order that remarriage or three years of cohabitation would automatically constitute a material change.

The court refused to include that provision, holding that its order should track its reasons and should not fetter the discretion of a future judge on a variation application.

On a family law motion in the Court of Appeal, the appellant sought appointment of the Children’s Lawyer to represent three children on a custody appeal and to potentially obtain further expert assessment evidence.

The court held that the appeal would focus on whether the trial judge erred in transferring custody, a determination entitled to significant appellate deference, and that introducing further investigation at the appellate stage risked distorting the appeal process.

The court found that the children had already been the subject of extensive professional intervention and that any involvement by the Children’s Lawyer would likely cause delay and further polarization.

The motion was dismissed, with costs fixed in favour of the respondent.

This was a costs endorsement following a family law appeal.

The court held that success on the appeal was divided and ordered that each party bear their own costs of the appeal.

The court further declined to interfere with the trial judge's costs award, finding it reasonable and noting that the result of the appeal would have only a modest monetary impact on the trial decision.

The appellant appealed the dismissal of his motion to change support obligations and the granting of the respondent’s cross-motion fixing child and spousal support arrears, ongoing spousal support, and security for support payments during default.

The court held that the consent order required the parties to be bound by the accountant’s calculation of income for support purposes and rejected the submission that a de novo review of financial circumstances was required.

The appellant’s argument based on the child no longer being a child of the marriage did not justify reducing spousal support in light of the wording of the consent order.

The order providing security for support was upheld, the cross-appeal was dismissed, and costs were fixed in favour of the respondent.

The appellant challenged a family law order setting aside a marriage contract, arguing the trial was unfair because of his hearing impairment.

The Court of Appeal held that the trial judge accommodated the self-represented appellant and that the record did not support any unfairness affecting the outcome.

The court further held it was open to the trial judge to conclude there had been inadequate financial disclosure and that the responding party did not understand the nature or consequences of the contract.

Fresh evidence was admitted for the limited purpose of understanding the hearing-impairment argument, but the appeal was dismissed.

The appellants challenged the trial judge's findings on support, equalization, and ownership of the Britannia Street home in a family property dispute.

The Court of Appeal held there was no basis to interfere with the trial judge's reasons accepting an earlier attribution of income, attributing financial responsibility for a vehicle, and finding that one appellant owned the home rather than holding it in trust for the other.

The appeal was dismissed.

The respondent was awarded appeal costs of $1,500 inclusive of disbursements and HST.

The appellant mother brought a motion for directions regarding her appeals of two interlocutory orders made in a child protection proceeding.

The respondent children's aid society brought a counter-motion to quash the appeal for lack of jurisdiction.

The Court of Appeal held that it lacked jurisdiction to hear the appeals because the orders were interlocutory and were made under Part III of the Child and Family Services Act at a family court branch, meaning any appeal lies to the Divisional Court.

The mother's motion was dismissed and the appeal was transferred to the Divisional Court.

Following the release of the appeal judgment, the respondent requested that the costs award be considered a support order under the Family Responsibility and Support Arrears Enforcement Act, 1996.

The appellant took no position.

The Court of Appeal ordered that the $24,000 costs award be treated as child support and enforceable pursuant to the Act.

The appellant appealed a trial judgment that largely denied his motion to change child and spousal support and ordered him to pay significant arrears.

He argued the trial judge erred by denying an adjournment to retain counsel, imputing income without sufficient evidence, and ordering him to pay 100 percent of horse-related section 7 expenses.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion in refusing the adjournment, had a sufficient basis to impute income due to the appellant's failure to provide financial information, and correctly treated the horse-related expenses as section 7 expenses.

The appellant appealed a spousal support order, arguing the trial judge erred in imputing income to him.

The Court of Appeal upheld the trial judge's findings that the appellant misrepresented his income, engaged in parental alienation, and was intentionally underemployed.

The court also upheld the income imputed to the respondent and the lack of a sunset date for access monitoring procedures.

The appeal was dismissed with costs.

The appellants appealed a Superior Court decision upholding a trial judge's order making their child a Crown ward, without access, for the purpose of adoption.

The child had been apprehended after being found with rickets and testing positive for cannabinoids due to a marijuana grow-op in the home.

The parents subsequently abducted the child and were on the run for five months before being arrested.

The Court of Appeal dismissed the appeal, finding no error in the lower courts' application of the best interests test, no reasonable apprehension of bias, and no error in the admission of fresh evidence.

The Canada Revenue Agency (CRA) registered liens against a taxpayer's properties for unpaid taxes.

The taxpayer's wife and sister subsequently claimed prior unregistered equitable interests in the properties (constructive trust and equitable mortgages).

The CRA brought a motion to determine if its registered liens took priority over these unregistered equitable interests.

The motion judge held that the CRA's liens did not constitute a 'charge' under the Land Titles Act and therefore did not take priority.

The Court of Appeal dismissed the CRA's appeal, confirming that the statutory liens do not arise from a voluntary act of the landowner and thus do not gain the priority afforded to a registered charge under the Land Titles Act.

The appellant appealed a spousal support order, arguing the trial judge failed to account for his significant family-related debt load in the 2009 calculation and that the retroactive award imposed an unreasonable hardship.

The Court of Appeal dismissed the appeal, finding the trial judge explicitly considered the debt load and that the retroactive amount resulted from the appellant's failure to make adequate payments.

No error in principle was found.

The appellant, a declared vexatious litigant, appealed a child support variation order that awarded lump sum child support to the respondent and dismissed his request for a retroactive reduction.

The Court of Appeal upheld the lump sum award and the dismissal of the retroactive reduction, noting the appellant's failure to pay support voluntarily, lack of financial disclosure, and protracted litigation.

However, the Court found the motion judge erred in failing to consider the appellant's motion for leave to request access to the child.

The appeal was allowed only to permit the appellant to request leave to bring a motion for access, and was otherwise dismissed.

The appellant father appealed a trial decision granting sole custody of the parties' three children to the respondent mother.

The father argued the trial judge erred by failing to consider ordering the children to attend a homogeneous French-language school as a condition of custody.

The Court of Appeal found that the trial judge did err in failing to consider such a condition, as the language of education is an important factor in the children's best interests.

However, the Court declined to order a change of schools on appeal, concluding that given the passage of time, it would no longer be in the children's best interests to disrupt their current education in a French immersion program.

The appeal was dismissed.

The moving party brought a motion to quash the appellant's notice of appeal in a family law dispute.

The Court of Appeal found that most of the orders appealed from were interlocutory and outside its jurisdiction.

While the orders regarding the sale of the matrimonial home were final, the property had already been sold and the proceeds paid into court, rendering the appeal moot.

The motion to quash the appeal was granted with costs.

The appellant father appealed a Superior Court order dismissing his appeal from an Ontario Court order making his child a Crown ward.

The child had been apprehended after the father allowed the mother, who posed a serious risk, to have contact with the child, breaching a supervision order.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred in principle by failing to balance the risk of harm to the child from exposure to the mother against the risk of disruption to the child's positive relationship with his father if a Crown wardship order were made.

The appellant appealed an order varying the respondent's child support obligations.

The respondent had suffered a catastrophic injury, constituting a material change in circumstances.

The motions judge retroactively recalculated child support arrears based on actual income rather than the previously imputed income.

The appellant argued the motions judge lacked jurisdiction to retroactively recalculate arrears under s. 37(2.1) of the Family Law Act.

The Court of Appeal dismissed the appeal, holding that s. 37(2.1)(a) provides the court with broad discretion to vary an original order retroactively when a change in circumstances is established.