Family and Matrimonial Law - OCA

The appellant sought to enforce letters of request from a Florida court to obtain documents from the former Ontario lawyers of his ex-wife and daughter for use in a Florida action for parental alienation.

The application judge dismissed the application on public policy grounds, finding it would interfere with solicitor-client privilege and client confidentiality.

The Court of Appeal dismissed the appeal, holding that the hearing was procedurally fair and the application judge properly exercised his discretion in refusing to enforce the letters of request because they sought presumptively privileged documents.

The moving party sought to quash her former spouse's appeal due to his ongoing and wilful breach of court orders requiring him to pay spousal support and arrears.

The Court of Appeal found the appellant's non-compliance to be deliberate, relentless, and indefensible.

The court exercised its discretion to quash the appeal, awarded full indemnity costs to the moving party, and ordered that the appellant be precluded from bringing any further proceeding before the court until he complies with all support obligations.

The appellant appealed a spousal support order of $125,000 per month following a 24-year marriage.

The appellant argued the trial judge erred in assessing the respondent's needs and means, misapplied the Halliwell principle for high-income earners, and erred in awarding indefinite support.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the respondent's compensatory entitlement, needs, and means, and confirming that the trial judge properly conducted an individualized fact-specific analysis.

The appellant appealed the dismissal of his motion to change spousal and child support orders.

He argued a material change in circumstances due to deteriorating health and an inability to work as an insurance broker.

The Court of Appeal upheld the motion judge's finding that the appellant was intentionally underemployed to avoid support obligations, noting that the medical evidence could have been presented at the original trial but was withheld as a trial strategy.

The appeal was dismissed with costs.

The parties separated in 2004 and entered into a separation agreement in 2005 requiring the respondent to pay spousal support.

The agreement included a material change clause and a retirement adjustment clause.

Following the respondent's retirement in 2016, he brought a motion to reduce spousal support.

The trial judge reduced the support payable, declining to impute income based on a 2009 early pension payout or to immediately impute maximum LIRA withdrawals.

The appellant appealed, arguing the trial judge failed to address her economic hardship and misapprehended the evidence.

The Court of Appeal dismissed the appeal, finding no error in principle or significant misapprehension of the evidence in the trial judge's assessment of the parties' circumstances.

The appellant appealed an order awarding retroactive and prospective spousal support to the respondent.

The appellant argued the order was a nullity because it was made under the Divorce Act after being severed from a divorce order, and alternatively, that the court lacked jurisdiction because the respondent had attorned to divorce proceedings in Alabama.

The Court of Appeal dismissed the appeal, finding that the support order was properly made under the Family Law Act and that the application judge correctly determined he had jurisdiction.

Costs of $12,000 were awarded to the respondent.

The appellants, whose children were previously made Crown wards, commenced a civil action against various individuals and organizations involved in the child protection proceedings.

Two defendants requested the dismissal of the action under Rule 2.1.01 as frivolous and vexatious.

The motion judge dismissed the action against those two defendants, and subsequently amended her reasons to dismiss the action against all defendants without giving the appellants notice.

The Court of Appeal upheld the dismissal against the two moving defendants, finding the action was an abuse of process attempting to relitigate the child protection proceedings.

However, the Court allowed the appeal regarding the other defendants, holding that the motion judge committed a procedural error by dismissing the action against them without providing notice and an opportunity to make submissions as required by Rule 2.1.01.

The appellant mother appealed the dismissal of her Hague Convention application seeking the return of her child to France.

The mother had taken the child to France in October 2018, and the respondent father brought the child back to Ontario in February 2019.

The application judge found that the child's habitual residence remained Canada throughout this period, as the father had only consented to a two-week trip to France, making the mother's retention of the child wrongful.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's application of the Balev hybrid approach to determine habitual residence.

The appellant appealed a summary judgment decision finding that a $165,000 advance from his former parents-in-law to construct a 'granny suite' on the matrimonial property was a loan secured by a valid licence agreement and demand mortgage, rather than a gift or a lease.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the formal, lawyer-drafted agreement clearly indicated a loan and a licence, and that there was no basis in the agreement to discount the principal amount based on the duration of occupancy.

The moving party sought an interim order restraining the responding party from depleting a specific property pending the disposition of his appeal.

The moving party had previously been awarded an equalization payment and a preservation order, but the trial judge indicated the judgment nullified the pre-trial preservation order.

The Court of Appeal granted the motion, finding that the preservation order was necessary under s. 12 of the Family Law Act to protect the moving party's interests and ensure sufficient assets remained to satisfy the equalization entitlement, as the balance of convenience favoured maintaining the status quo.

The appellant loaned money to his son, secured by a mortgage on the son's home.

Years later, the son's former spouse sought to sell the home to satisfy an equalization payment and sought a declaration that the mortgage was statute-barred.

The application judge agreed, finding the 10-year limitation period had expired and no valid acknowledgment existed.

On appeal, the appellant sought to introduce fresh evidence and argued promissory estoppel.

The Court of Appeal dismissed the appeal, refusing to admit the fresh evidence as it could have been adduced at trial and would not have affected the result.

The court also upheld the finding that promissory estoppel did not apply and noted the appellant's conduct disentitled him to equitable relief.

The appellant father sought to relocate with his seven-year-old child from Kincardine to Whitby, relying on a notice provision in a consent order.

The motion judge held that a motion to change was required and dismissed the motion, finding no material change in circumstances.

The Court of Appeal upheld the decision, agreeing that the proposed move contradicted the schooling and access clauses of the order, necessitating a motion to change.

The court also found no error in the motion judge's conclusion that the father's concerns about the stigma of past false abuse allegations were foreseeable at the time of the original order.

The appeal and leave to appeal costs were dismissed.

The appellant appealed an interlocutory order for the pre-trial sale of the matrimonial home under the Partition Act.

The respondent challenged the Court of Appeal's jurisdiction, arguing that section 7 of the Partition Act directs such appeals to the Divisional Court.

The panel agreed it lacked jurisdiction as the Court of Appeal but, given the imminent trial date, was designated as a panel of the Divisional Court to hear the matter.

On the merits, the court allowed the appeal and set aside the sale order, noting the motions judge failed to explicitly address whether the sale would prejudice the appellant's rights under the Family Law Act and that a pre-trial sale was practically unnecessary.

The appellant father appealed a motion judge's order finding him in contempt of court for using his mother as a caregiver for his children instead of the designated daycare provider, and a subsequent order imposing sanctions.

The respondent mother moved to quash the appeal as out of time.

The Court of Appeal dismissed the motion to quash, extending the time for service.

The Court allowed the appeal and set aside the contempt and sanction orders, finding that the motion judge erred by making findings of contempt that extended beyond the specific non-monetary breach alleged in the notice of motion.

The appellant appealed the dismissal of her solicitor's negligence claim and the award of full indemnity costs against her.

The claim arose from advice regarding a separation agreement and the treatment of a severance payment.

The Court of Appeal upheld the trial judge's findings that the solicitor did not breach the standard of care and that the appellant suffered no damages.

However, the Court found the trial judge erred in awarding full indemnity costs based on the appellant's conduct at trial.

The trial costs award was reduced from $160,706.99 to $60,000 on a partial indemnity scale, emphasizing the principle of proportionality.

The appellant wife appealed the trial judge's equalization of net family property and costs award, arguing that post-separation losses in a limited partnership should be shared and that divergent notional tax rates should apply to taxable assets.

The respondent husband cross-appealed the imputation of income to him and the dismissal of his spousal support claim.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no error in the trial judge's factual findings regarding the wife's exclusive control of the investment, the lack of evidence for divergent tax rates, the imputation of income based on the husband's credibility and lifestyle, and the discretionary denial of spousal support.

Following an appeal where the appellant succeeded in reducing the amount payable but failed to obtain a new trial or overturn the setting aside of a domestic contract, the court determined costs.

The respondent was deemed largely successful and awarded $25,000 in appeal costs.

The issue of trial costs, originally awarded on a substantial indemnity scale, was remitted to the trial judge for reconsideration in light of the appeal outcome.

The appellant appealed a family law judgment, arguing the trial judge erred in handling a child's statement regarding inappropriate sexual conduct.

The Court of Appeal dismissed the appeal, noting the Children's Aid Society had fully investigated the concerns and closed its file.

The court also declined to admit fresh evidence relating to events after the original order, advising the appellant to bring a motion to change if circumstances had altered.

The appellant father appealed a trial costs order of $185,000, which the trial judge directed to be enforced by the Family Responsibility Office (FRO) as 'lump sum spousal support'.

The father argued this was an error because spousal support was never claimed or litigated.

The Court of Appeal agreed that characterizing the costs as spousal support was an error, but upheld the trial judge's intention that the costs be enforced by the FRO, as child support was a live issue at trial.

The Court amended the order to characterize the costs simply as 'support'.

The father's other grounds of appeal regarding the quantum of costs and procedural fairness were dismissed.

The mother's motion to quash the appeal for the father's alleged failure to post proper security for costs was also dismissed.

The appellant father appealed a trial decision regarding custody, child and spousal support, and equalization of net family property.

He argued the trial judge erred in designating the mother's home as the primary residence and ordering unequal access despite a joint custody order, and challenged the support and equalization orders.

The Court of Appeal dismissed the appeal, finding the trial judge's decisions on primary residence, access, imputed income, and equalization were fully supported by the record and sensible in a high-conflict case.