Family and Matrimonial Law - OCA

The Court of Appeal for Ontario granted leave for the former trial solicitor of Michael Scott De Longte to intervene in the appeal, limited to the issue of ineffective assistance of counsel.

The court found the solicitor’s participation necessary to complete the record and assist in the proper adjudication of the issue, as the allegations of ineffective assistance were central to the appeal and mirrored in a related professional negligence action.

The court also declared that solicitor-client privilege had been waived by Mr. De Longte and set out a schedule for the exchange and filing of fresh evidence, cross-examinations, and facta.

No costs were awarded on the motion.

The husband appealed a lower court decision that set aside two Quebec marriage contracts, which had stipulated separation as to property, thereby allowing the wife to pursue an equalization claim under Ontario's Family Law Act.

The Court of Appeal dismissed the husband's appeal, upholding the application judge's discretionary decision to set aside the contracts.

The basis for setting aside included the husband's failure to disclose significant assets (a $4 million inheritance) and the wife's lack of understanding of the contracts' nature and consequences, particularly regarding her entitlement to share in the income from inherited property, which is not automatically excluded from net family property under Ontario or Quebec law unless expressly stated by the testator/donor.

The appellant, a kin caregiver for a First Nations child, appealed an order dismissing a child protection proceeding and denying her motion to be added as a party.

The motion judge had dismissed the proceeding based on a customary care agreement signed by the biological parents, the child's aunt, the First Nation, and the Children's Aid Society, which excluded the appellant.

The Court of Appeal allowed the appeal, finding that the appellant met the statutory definition of a 'parent' under the Child, Youth and Family Services Act and was entitled to party status.

The Court further held that the proceeding could not be dismissed on consent without the appellant's participation and a proper analysis of the child's best interests.

The appellant appealed an order striking his answer and amended answer in a family law proceeding due to his ongoing failure to comply with court orders regarding costs, household expenses, and financial disclosure.

The Court of Appeal upheld the motion judge's decision, finding the appellant's non-compliance to be wilful and egregious.

The court emphasized that striking pleadings is an exceptional remedy but was justified here given the appellant's repeated disregard for his fundamental obligations.

The appeal was dismissed.

The appellant sought an extension of time to appeal two orders from a trial judge concerning divorce, property equalization, spousal support, and costs.

While the appellant demonstrated intention and explained the delay, the court found the proposed appeal lacked merit, as it largely reiterated issues already addressed at trial and presented unsubstantiated allegations.

Consequently, the motion for an extension of time to appeal the October 8, 2019 order was dismissed.

The respondent's cross-motion for service by email was granted, with the condition that material also be sent to the appellant's post office box.

Costs were awarded to the respondent.

The appellant appealed a trial judge's decision regarding child support, spousal support adjustment mechanisms, and reimbursement for home maintenance expenses.

The appellant sought an additional $50,000 in child support, $96,000 for her share of home maintenance expenses, and annual CPI adjustments to support.

The Court of Appeal upheld the trial judge's decision, finding the child support award complied with guidelines, the home expense allocation was fair given the appellant's residence and profit-sharing in the home sale, and the salary-based adjustment mechanism for spousal support was appropriate.

The court also rejected allegations of impropriety regarding counsel's contact with the Canada Revenue Agency and upheld the costs award.

A self-represented appellant sought an extension of time to serve and file a notice of appeal after serving it one day late due to misinformation about the appropriate appellate court.

The chambers judge dismissed the motion, finding prejudice to the respondent based on an outstanding costs award and determining the appeal lacked merit.

The Court of Appeal allowed the appeal, holding that the one-day delay caused no actual prejudice, the respondent had been served within the 30-day period with a notice to the wrong court, and the justice of the case required granting the extension despite the apparent lack of merit, particularly given the significant financial consequences of the trial decision.

Appeal from a trial judgment in a family law matter involving division of net family property, child support, and spousal support.

The trial judge ordered an equal division of net family property (proceeds from the matrimonial home), denied child support on the basis that the respondent's income was insufficient and the children had repudiated their relationship with their mother, and ordered the appellant to pay spousal support of $500 per month based on imputed income of $40,000.

The appellant appealed on grounds of reasonable apprehension of bias, erroneous denial of child support, improper imputation of income, and failure to order unequal division of family property.

The Court of Appeal dismissed all grounds of appeal and the application for fresh evidence.

The mother appealed a trial decision granting sole custody to the father, dismissing her financial claims, and alleged judicial bias because the father's mother worked at the courthouse.

The father cross-appealed the trial judge's decision to reduce the mother's child support obligations by $350 per month for access costs.

The Court of Appeal dismissed the mother's appeal, finding no error in the custody decision, no basis for the financial claims, and no reasonable apprehension of bias.

The Court allowed the father's cross-appeal, removing the access cost deduction and correcting a typographical error in the mother's income for child support purposes, setting ongoing support at $765 per month.

The maternal grandparents of an 8-year-old child appealed an order granting custody to the mother and allowing her to relocate to British Columbia.

The grandparents obtained a stay of the custody order pending appeal from a single judge of the Court of Appeal.

The mother sought a review of the stay order.

The panel set aside the stay, finding that the motion judge had relied on a misleading record containing fresh evidence that did not meet the Palmer test, and that the test for a stay was not met given the lower court's factual findings regarding the mother's capability and the child's best interests.

The appellant appealed from a motion judge's refusal to dismiss the respondent's application for child support under the Family Law Act.

The appellant argued that the respondent was required to proceed under the Interjurisdictional Support Orders Act and that Ontario was not the convenient forum.

The Court of Appeal dismissed the appeal, holding that the Interjurisdictional Support Orders Act provides an alternative procedure and does not bar a claim under the Family Law Act if the court has jurisdiction.

The court found a real and substantial connection to Ontario based on the child's lifelong residence in the province.

The appellant also failed to establish that another forum was clearly more convenient.

The appeal was dismissed with costs.

The appellant challenged the dismissal of her claims arising from a property transfer and alleged monies owing, arguing trial unfairness, inadequate reasons, and errors in the rejection of resulting trust and constructive trust remedies.

The Court of Appeal held that the trial judge was entitled to restrict cross-examination on a document withheld in breach of a trial management order and that no unfairness resulted.

It further held that the trial judge gave adequate reasons and made factual findings open on the record supporting the conclusions that consideration was provided for the property transfer, no unjust enrichment was established, and the money-advanced claim failed.

The appeal was dismissed with fixed appeal costs to the respondent.

In a child protection appeal, the appellant mother challenged the dismissal of her appeal from an order denying leave to bring a status review application.

The court held that the applicable analysis was discretionary and required consideration of the child's best interests.

Although the mother had made positive changes in her life, the court concluded that the appeal judge properly considered the broader context, including the child's age, limited contact with the mother, and the child's wish that the adoption proceed while preserving some ability to communicate.

The appeal was dismissed.

The appellant appealed an order dismissing her motion to set aside a judgment from an undefended matrimonial trial.

The appellant's pleadings had been struck due to her continuing contempt of court orders requiring financial disclosure.

The Court of Appeal found that the respondent was entitled to proceed with the undefended trial because the appellant failed to purge her contempt or reinstate her pleadings by the court-ordered deadline.

The appeal was dismissed with costs awarded to the respondent.

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 brought a tort claim against his former wife following the final settlement of their matrimonial litigation.

The motion judge dismissed the claim, finding the appellant was precluded from proceeding.

The Court of Appeal upheld the decision, noting the appellant knew all necessary facts at the time of the matrimonial settlement and failed to pursue the claim or reserve his right to do so.

The appeal was dismissed with costs.

The appellant mother appealed a decision granting the respondent father's application under the Hague Convention to return their child to Australia.

The mother opposed the return under Article 13(b), alleging the father was a violent criminal and drug addict, and that returning the child would expose him to a grave risk of psychological harm.

The application judge ordered the child's return without hearing viva voce evidence.

The Court of Appeal dismissed the appeal, holding that the application judge correctly applied the stringent test under Article 13(b) and that oral evidence was not required because there was no realistic possibility it would establish the defence.

The matter was remitted to determine undertakings prior to the child's return.

The appellant appealed a trial judge's decision placing the child with the mother under the supervision of the Children's Aid Society.

The Court of Appeal found no error in the trial judge's conclusion that this placement was in the best interests of the child, and that placement with the appellant was not.

The appeal was dismissed.

The appellant father appealed an order changing the custodial arrangement of his child.

The motions judge found a material change in circumstance based on the father's adverse relationship with the school, the child's high number of absences and lateness, impaired academic performance, and the father's breaches of a prior consent custody order.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's focus on the best interests of the child and her conclusion that a change in custody was necessary.

The appellant appealed his conviction for abduction of a child under 14 contrary to s. 283 of the Criminal Code.

He argued the trial judge failed to adequately weigh the complainant's inconsistent evidence, reversed the burden of proof, and erred in applying the defence of consent.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to accept the complainant's explanation for inconsistencies, properly applied the burden of proof, and correctly concluded there was no air of reality to the defence of lack of intent to deprive.