Family and Matrimonial Law - OCA

The appellant appealed a motion judge's decision dismissing a motion to stay ten previous family law orders, arguing lack of jurisdiction due to improper service under the Hague Service Convention.

The appellant also brought a motion to quash a case management judge's decision regarding the proper and timely service of responding appeal materials.

The Court of Appeal upheld the motion judge's finding that service was proper under the Convention and Ontario rules, and that the appellant had attorned to the court's jurisdiction through participation in the proceedings.

The court also found no error in the refusal to grant a stay, applying the RJR-MacDonald test, and dismissed the motion to quash the case management judge's decision.

Appeals from determinations made by an application judge regarding the will of the late Peter Trezzi.

The deceased operated a successful construction business through two corporations: Across Canada Construction Ltd. (ACC) and Trezzi Construction Ltd. (Trezzi Construction).

Peter was the sole shareholder of Trezzi Construction.

The central disputes concerned whether Peter could effectively bequeath assets held by Trezzi Construction to his son Albert; whether his wife Gina owned 50 per cent of ACC shares; and whether Gina was entitled to an extension of time to file a surviving spouse's election under the Family Law Act.

The Court of Appeal dismissed all three appeals, upholding the application judge's determinations on each issue.

The respondent moved to quash an appeal for lack of jurisdiction.

The appellant sought to have the appeal transferred to the Divisional Court in Oshawa and undertook to have the matter heard in September 2018.

The Court of Appeal granted the cross-motion to transfer the appeal to the Divisional Court, finding it appropriate given the complex appeal routes for child custody orders from the Family Division and the timely perfection of the appeal.

The motion to quash was dismissed.

Appeal from trial judgment in matrimonial proceedings concerning ownership of property.

The trial judge found that the appellant's 50% interest in Knapton Farms Ltd. (a corporation holding farm property) and 100% interest in lot 8 (adjoining land) were beneficially owned by the respondent through resulting trust.

The Court of Appeal allowed the appeal in part, finding that the trial judge correctly applied resulting trust principles to the Knapton shares but erred regarding lot 8.

The court held that the initial 1994 transfer of lot 8 to the parties as joint owners created a presumption of joint beneficial ownership under the Family Law Act, which the respondent failed to rebut.

However, the court upheld the resulting trust finding regarding the 1996 transfer of the respondent's half-interest to the appellant.

The court also corrected the valuation of farm real estate and addressed equalization, occupation rent, and pre-judgment interest issues.

The appellant appealed the dismissal of her application to set aside minutes of settlement in matrimonial proceedings.

The parties had been in a common-law relationship from 1985 to 1999 and had two adult children.

They lived in Canada, England, and Ireland before separating.

The appellant sought to set aside a 2006 settlement agreement on grounds of non-disclosure of assets, including a Spanish property and stock options.

The trial judge found that while the respondent had failed to disclose certain assets, the agreement was fair and the non-disclosure was not material to the appellant's decision to settle.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error of fact.

The appellant mother appealed a contempt finding by the motion judge for withholding the children from the respondent father in violation of a parenting schedule.

The motion judge found the mother in contempt and imposed double make-up time as a penalty, which the mother subsequently complied with.

The Court of Appeal upheld the contempt finding, finding no palpable and overriding error.

The appeal regarding the penalty was found to be moot as it had been completed.

The court also upheld the motion judge's continued jurisdiction over the matter in this high-conflict family law case, citing best practice principles.

The appellant appealed an order appointing his mother and sister as guardians of property and personal care for his incapable sister.

The appellant argued the application judge made unreasonable findings of fact, unfairly disregarded his evidence, and failed to consider the incapable sister's best interests.

The Court of Appeal dismissed the appeal, finding that the application judge's findings were supported by the evidence, including the finding that the appellant's actions were financially motivated.

The application judge properly scrutinized the management plans and concluded it was in the incapable sister's best interests to remain with her mother.

The appellant brought a motion to set aside an order of Blair J.A., which denied his request for the province to pay for appeal transcripts and refused a stay of child support pending appeal.

The Court of Appeal found no error in the single judge's analysis or conclusions and dismissed the motion.

Appeal from a family law summary judgment dismissing an application to set aside a separation agreement based on alleged material misrepresentation of date-of-marriage business assets affecting equalization.

The court held that, once deliberate material misrepresentation was assumed, the motion judge erred by shifting the onus to the recipient spouse to investigate the veracity of the disclosure; the burden remained on the disclosing spouse to prove actual knowledge of the falsehood.

The record contained genuine issues requiring a trial regarding the extent and deliberateness of the non-disclosure, the recipient spouse's actual knowledge, and related claims concerning spousal support, undue influence, duress and unconscionability.

The only issue finally resolved against the appellant was the claim that the agreement was unenforceable for lack of proper witnessing under s. 55(1) of the Family Law Act.

The appellant appealed a finding of civil contempt and a 75-day sentence for failing to deliver jewellery and artwork to the respondent pursuant to a court order.

The Court of Appeal upheld the contempt finding, noting the motion judge implicitly rejected the appellant's claim that he did not possess the items.

However, the Court varied the sentence, setting aside the 30-day term for the jewellery due to lack of clarity on the extent of the breach, and reducing the 45-day term for the artwork to 15 days, adding a coercive clause allowing the appellant to avoid or shorten the sentence by delivering the specified items.

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

The Court of Appeal allowed the appeal on consent, ordering that it proceed as per the attached minutes of settlement.

The cross-appeal was dismissed.

The parties entered into a pre-nuptial agreement one day before their wedding, agreeing to keep all real and personal property separate.

After a 17-year marriage, they separated and the wife successfully applied to set aside the contract at trial.

The husband appealed.

The Court of Appeal allowed the appeal, finding the trial judge erred in setting aside the contract based on an improper application of the test for misrepresentation, the absence of support provisions, and the retrospective application of section 56(4) of the Family Law Act.

A new trial was ordered.

The appellant appealed a motion judge's decision regarding whether the parties' cohabitation was for the primary purpose of reconciliation under their separation agreement.

The Court of Appeal allowed the appeal, finding that the matter involved diametrically conflicting evidence and required findings of credibility that could only be resolved after a trial on viva voce evidence, rather than on a motion.

The appellant husband appealed a divorce judgment regarding pension valuation, investment ownership, spousal support, retroactive spousal support, matrimonial home valuation, and the terms of an equalization payment.

The Court of Appeal upheld the trial judge's findings on pension valuation, investments, ongoing spousal support of $1700 per month, and the matrimonial home valuation.

However, the Court found the trial judge failed to explain the basis for awarding $30,000 in retroactive spousal support and remitted that issue to the trial judge.

The Court also set aside the terms regarding the equalization payment and non-depletion order, remitting them to the trial judge if the parties cannot agree.

The respondent mother abducted her three children and fled to Mexico, fearing she would lose all access to them at an upcoming custody hearing.

She was acquitted at trial of abduction in contravention of a custody order after the trial judge left the statutory defence of necessity to the jury.

The Crown appealed.

The Court of Appeal allowed the appeal and ordered a new trial, finding there was no air of reality to the necessity defence because the anticipated loss of access through a lawful court order did not constitute 'imminent harm' and the respondent had reasonable legal alternatives available.

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

The Court of Appeal determined that the appeal was moot given an order made in a related motion, and disposed of the appeal accordingly.

The appellant appealed an order striking his pleadings due to a long history of delay.

The Court of Appeal found no error in the trial judge's exercise of discretion, noting there was no material to support any other conclusion.

The appeal was dismissed with costs awarded to the respondent.

The appellant father appealed an order requiring him to pay child support in accordance with the Ontario Child Support Guidelines.

A 1985 court order had previously required him to pay a $4,000 lump sum for child support and denied him access.

The mother later married and her new husband assumed financial responsibility for the child.

Following her separation from the new husband, the mother applied for child support from the appellant.

The Court of Appeal dismissed the appeal, holding that the enactment of the Guidelines created an automatic right to vary pre-existing child support orders without needing to prove a material change in circumstances.

The Court also found that while the prior arrangements could constitute 'special provisions' under s. 37(2.3) of the Family Law Act, it would not be inequitable to apply the Guidelines in this case.

The appellants appealed a child protection order placing the children in Crown wardship without access.

The court held there was evidence supporting the trial judge’s findings that the children were in need of protection and that one parent posed a substantial risk within the meaning of s. 37(2)(d) of the Child and Family Services Act.

The court further held the children would not be protected from that risk if returned to the appellants, even with supervision by the society.

Finding no error in the reviewing judge’s analysis, the appeal was dismissed without costs.

The deceased, knowing he was terminally ill, secretly transferred his business assets and the matrimonial home to his children to defeat his wife's equalization claim under the Family Law Act.

After his death, the wife elected to take an equalization payment rather than her legacy under the will and sought to set aside the transfers under the Fraudulent Conveyances Act.

The Court of Appeal upheld the trial judge's decision setting aside the transfers, finding that the wife qualified as a 'creditor or other' under the Fraudulent Conveyances Act because she had an imminent right to apply for equalization at the time of the transfers.

The Court confirmed that the Family Law Act does not oust the operation of the Fraudulent Conveyances Act.