Family and Matrimonial Law - OCA

The moving party sought an extension of time to serve and file a notice of appeal from a family law judgment.

The delay in filing was only one day, but the moving party had a history of unreasonable conduct, delay, and non-compliance with court orders throughout the proceedings.

The motion judge reviewed the merits of the proposed appeal, which challenged the striking of pleadings, occupation rent, and post-separation adjustments, and found them to be completely devoid of merit.

The motion for an extension of time was dismissed as it was not in the interests of justice to allow the meritless appeal to proceed.

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.

The appellant, who had a long history of family law litigation and outstanding costs and child support arrears, appealed an SCJ order that quashed his previous appeals as an abuse of process.

He also brought motions to adduce fresh evidence and to review a single judge's decision dismissing his motion to amend his notice of appeal.

The Court of Appeal dismissed the fresh evidence motion as irrelevant and the review motion as meritless.

The Court exercised its discretion to refuse to entertain the appeal due to the appellant's continuing disobedience of court orders regarding financial obligations, and noted there was no basis for appellate intervention in any event.

The appellant father appealed a trial decision that altered a consent order regarding decision-making responsibility for his daughter.

The trial judge found a material change in circumstances due to ongoing parental conflict and assigned sole decision-making responsibility for schooling, health care, and extracurricular activities to the respondent mother.

The Court of Appeal dismissed the appeal, finding no evidence that the trial judge relied on improperly admitted documents and concluding that her factual findings were supported by the record and entitled to deference.

The appellant, a self-represented litigant, brought a motion to stay the enforcement of child support provisions in a Divorce Order pending his appeal.

He also sought leave to file a factum exceeding the standard page limit and an extension of time to perfect the appeal.

The motions judge dismissed the request for a stay, finding no serious issue to be tried and no irreparable harm.

However, given the complexity of the case and the appellant's self-represented status, the court granted leave to file a 40-page factum and extended the time for perfection.

The appellant mother travelled to Ontario from Dubai with her two children for a visit, but subsequently informed the respondent father that she would not return.

The father commenced proceedings in Ontario seeking a return order under s. 40 of the Children's Law Reform Act.

The trial judge declined jurisdiction under ss. 22 and 23 of the Act, ordered the children returned to Dubai, and dismissed the mother's constitutional challenges to s. 40(3).

The Court of Appeal dismissed the mother's appeal, finding no palpable and overriding error in the trial judge's assessment of the risk of serious harm under s. 23, and upholding the constitutionality of the return order provision under both division of powers and the Charter.

The moving party brought a motion to set aside the Registrar's dismissal of her appeal for failure to perfect on time.

The delay was primarily caused by the moving party's initial appeal counsel, who failed to address fee waivers and properly serve documents.

The Court of Appeal applied the Paulsson factors and found that it was in the interests of justice to set aside the dismissal, as the moving party should not suffer the consequences of her lawyer's oversight, the appeal materials were essentially ready, and there was no prejudice to the children's best interests.

The motion was granted and the appeal was permitted to proceed.

A proposed intervener brought a motion for leave to intervene as a friend of the court in a family law appeal concerning child custody and the best interests of the children.

The appellant consented, but the respondent opposed the motion.

The court acknowledged the proposed intervener's expertise but dismissed the motion, finding that the late timing of the application would cause significant prejudice to the respondent, who would not have adequate time to respond to the intervener's factum before the scheduled appeal hearing.

The father was awarded sole custody of the parties' child and permitted to relocate to Oregon after a trial where the mother presented forged documents and fled to India mid-proceeding.

The mother appealed the trial decision.

The father brought a motion for security for costs of the appeal, and the mother brought a cross-motion for a stay of the judgment pending appeal.

The Court of Appeal granted the father's motion, finding the appeal frivolous and vexatious, and ordered the mother to post $30,000 in security.

The mother's motion for a stay was dismissed as she failed to meet the RJR-MacDonald test.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs of the appeal were awarded to the respondent on a partial indemnity scale in the amount of $2,500, inclusive of disbursements and HST.

The applicant sought a review of a single judge's decision refusing a stay of an order setting a settlement conference date and refusing an extension of time to perfect his appeal.

The applicant argued the motion judge erred in considering the court's lack of jurisdiction, asserting such a decision required a full panel.

The Court of Appeal dismissed the motion, finding no error in the motion judge's consideration of jurisdiction as a factor in exercising discretion to refuse the stay and extension of time.

An appeal concerning the appointment of guardians for a 90-year-old mother's property and personal care.

David and Edward Carey, who were originally applicants, withdrew their support for the applicants' position and sought to be appointed as appellants.

The motion judge had previously removed them as applicants without making them respondents.

The appellate court dismissed the appeal, finding no error in the motion judge's decision to appoint guardians in the best interests of the mother.

The court ordered David and Edward Carey to pay costs of $5,000 to the respondents.

The appellant appealed from a trial judge's order awarding sole custody of the parties' daughter to the respondent in Nova Scotia and adjusting the respondent's contribution to certain section 7 expenses.

The trial judge had heard evidence over three phases spanning more than two years.

While the respondent sought custody of both children, the trial judge found it was in the daughter's best interests to reside with the respondent in Nova Scotia, considering factors including the presence of both sets of grandparents in Nova Scotia, the daughter's wishes, the Office of the Children's Lawyer's recommendation, and the appellant's greater engagement with the son's hockey career.

The appellant also sought to admit fresh evidence regarding post-judgment access problems and non-payment of support.

A father appealed a declaration granted by the Superior Court that his 16-year-old daughter had withdrawn from parental control under section 65 of the Children's Law Reform Act.

The father argued that he was entitled to be a party to the application and that the court should not have granted the declaration.

The Court of Appeal held that while parents must be parties to applications under Part III of the CLRA, the court retains discretion to direct the extent of their participation.

The court also held that the factors to be considered on such an application extend beyond the child's age to include the reasons for the declaration, its utility, and the child's best interests.

The appeal was dismissed.

The appellant, a second mortgagee on a matrimonial home, appealed a judgment denying its claim for additional funds and interest based on unregistered amending agreements.

The appellant argued its claim trumped that of an execution creditor.

The Court of Appeal dismissed the appeal, finding the appellant had previously admitted its security only applied to the registered principal amount and had taken an inconsistent position in a separate action.

The court also rejected the appellant's equitable mortgage argument and upheld the costs awards.

Following the dismissal of the appellant's family law appeal regarding the sale of the matrimonial home, child support, spousal support, and section 7 expenses, the court received written submissions on costs.

The respondent, who was entirely successful on the appeal, was awarded costs in the amount of $2,500 inclusive of disbursements and HST.

The parents appealed a motion judge's order dismissing their appeal of a Crown wardship decision for delay.

The parents argued the motion judge failed to consider the merits of their appeal and breached their right to a fair hearing by denying an adjournment.

The Court of Appeal found that while the motion judge should have explicitly addressed the merits, a review of the record showed the parents' appeal raised only factual disputes with no palpable and overriding error.

Given the lack of merit and the child's need for stability, the appeal was dismissed.

The moving party brought motions to review an order of a single judge of the Court of Appeal that denied his request to expand the appeal records and hear two appeals together, and ordered him to perfect both appeals within 45 days.

The moving party sought an adjournment of his review motions to obtain further evidence, which the court denied because the review must be based on the material before the single judge.

The court upheld the single judge's decision regarding the records and hearing the appeals together.

However, the court clarified the timeline for perfecting the cross-appeal in the family law matter, allowing the moving party 45 days after the appellant perfects her appeal.

The motion was otherwise dismissed with costs awarded to the respondent lawyer.

The appellant appealed a family law trial judgment regarding the funding of an equalization payment and the trial costs award.

The trial judge had ordered the respondent to pay the $183,911.76 equalization payment out of the $277,980.48 proceeds from the sale of the matrimonial home held in trust.

The Court of Appeal agreed with the appellant that, because the parties had an equal entitlement to the sale proceeds, the trial judge erred by effectively using the appellant's own share of the funds to partially satisfy the equalization payment owed to him.

This portion of the order was set aside.

However, the Court of Appeal dismissed the appeal regarding the trial costs award, finding no error in the trial judge's assessment of the parties' relative success.

The appellant was awarded $7,500 in costs for the appeal.

The appellant appealed an order dismissing his motion to change spousal support.

He argued his income had declined and the respondent had purchased a home in France without a mortgage, constituting a material change in circumstances.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's refusal to find a material change, as the appellant's income was trending upward and he provided no evidence of the respondent's asset position at the time of the original order.

The court also rejected claims of bias and improper procedure.