Family and Matrimonial Law - OCA

The appellant appealed a motion judge's decision interpreting a Separation Agreement between the appellant and her deceased husband.

The agreement stipulated that if the husband died before his pension came into pay, the appellant would be considered the sole surviving spouse and receive all benefits.

The motion judge erred by confusing the terms for when the pension was in pay versus death before pay, and by finding a conflict between s. 48(3) and s. 48(13) of the Pension Benefits Act.

The Court of Appeal held that s. 48(13) gives statutory priority to domestic contracts.

The appeal was allowed and the cross-appeal dismissed.

A non-party purported to appeal a vesting order made in a Family Law Act proceeding, claiming he had purchased a 50% interest in the subject cottage property prior to the trial.

The Court of Appeal dismissed the appeal, finding that the appellant had no standing as he was not a party to the original proceeding and had taken no steps in the Superior Court to be added as a party or to set aside the order.

The dismissal was without prejudice to any steps the appellant might take in the Superior Court.

The parties separated after a 36-year marriage during which they operated a dairy farm.

The application judge ordered a lump sum spousal support payment, refused to allow the husband to deduct future disposition costs from his net family property, found a milk quota transfer was not a gift, and ordered the in specie division of six jointly owned farm properties.

On appeal, the Court of Appeal held that the application judge erred in refusing the disposition costs deduction and in ordering the in specie division of the properties under the Family Law Act and Partition Act.

The properties were ordered to be sold.

The appeal regarding the milk quota and spousal support was dismissed.

The respondent on appeal brought a motion for security for costs under Rule 61.06(1) of the Rules of Civil Procedure.

The underlying family law trial resulted in orders for an equalization payment, child support, and costs against the appellant, who was found to be recalcitrant and had income imputed to him.

The Court of Appeal found good reason to believe the appeal had no merit and that the appellant had insufficient assets in Ontario to pay the costs of the appeal.

The motion was granted, and the appellant was ordered to post $8,500 in security for costs.

The mother appealed a decision dismissing her status review application regarding her child, who had been made a Crown ward with no access.

On appeal, both the mother and the Children's Aid Society sought to introduce fresh evidence, including evidence that the child's prospective adoptive parents had separated.

The Court of Appeal admitted the fresh evidence, finding it could impact the outcome, and ordered an assessment report to evaluate the impact of the separation on the child.

The court also requested submissions from the Attorney General of Ontario regarding the mother's claim that institutional delays violated her section 7 Charter rights.

The appeal was reserved pending receipt of the further material.

The appellant father, who had sole custody of his autistic son, sought to relocate from Waterloo to Pickering to live with his new partner.

The respondent mother opposed the move.

The motion judge found a material change in circumstances but dismissed the motion, concluding the move was not in the child's best interests.

The Court of Appeal allowed the appeal, finding the motion judge erred in law by placing the burden of proof on the father and misapprehended evidence regarding the benefits of the move.

Applying the Gordon v. Goertz factors, the Court concluded the relocation was in the child's best interests.

The appellant mother appealed a summary judgment order granting Crown wardship without access, arguing that the admission of hearsay, opinion, and business records evidence violated section 7 of the Charter.

The Court of Appeal dismissed the appeal, noting that the Family Law Rules do not prohibit hearsay on summary judgment motions and the mother had consented to the protection finding without objecting to the evidence below.

The court found that admissible evidence and the mother's own admissions justified the disposition, as she had not presented an adequate plan for the care of the children, leaving no genuine issue requiring a trial.

The appellant mother appealed an order finding her in contempt for allegedly manipulating her 16-year-old daughter into refusing to attend a March break vacation with the respondent father.

The motion judge had ordered a temporary change in custody as a remedy.

The Court of Appeal allowed the appeal and set aside the contempt finding, noting procedural errors, failure to consider all evidence, and an unreasonable conclusion on the record.

The Court also held that changing custodial arrangements is not an available remedy for contempt under Rule 31(5) of the Family Law Rules and cannot be used as punishment.

The appellant appealed an order refusing to set aside an uncontested custody and child support order.

The appellant had failed to respond to the initial application, leading to the uncontested hearing.

The Court of Appeal found no error in the motion judge's refusal to set aside the order, noting the appellant failed to explain his failure to respond to the proceedings and that the best interests of the children were considered.

The appeal was dismissed with costs.

The appellant appealed an order dismissing her appeal from a trial decision making her child a Crown ward.

She argued the appeal judge erred in applying s. 57(4) of the Child and Family Services Act by failing to properly consider fresh evidence of community members willing to care for the child.

The Court of Appeal dismissed the appeal, agreeing with the appeal judge that the fresh evidence did not present an actual plan of care, though it noted positive developments regarding a relative's new plan of care.

The appellant and the deceased entered into a separation agreement in which the deceased represented that the appellant was solely entitled to his pension survivor benefits.

The agreement also provided that if the deceased remarried, he would make all possible efforts to have his new spouse release her claims to his pension.

The deceased remarried and subsequently died before retiring.

The appellant brought an action claiming entitlement to the pre-retirement death benefit, arguing the separation agreement constituted an assignment under the Pension Benefits Standards Act, 1985.

The Court of Appeal dismissed the appeal, holding that the separation agreement did not amount to a clear and unequivocal assignment of the pre-retirement death benefit, particularly given the express recognition that a subsequent spouse might not release her rights.

The appellant appealed an order relating to two children.

The Court of Appeal found that the order did not finally resolve the issues between the parties and was therefore not a final order.

As the order was interlocutory, jurisdiction lay with the Divisional Court.

The appeal was quashed.

The parties separated after a 21-year marriage.

The appellant wife alleged the separation was orchestrated by the respondent husband's children and challenged his mental competency due to Parkinson's disease.

The motion judge found the husband competent based on capacity assessments, ordered the partition and sale of the matrimonial home, and dismissed the application against the children.

The Court of Appeal dismissed the wife's appeal, holding that the motion judge's finding of competency was entitled to deference and drove the result of the other issues.

The appellant father appealed a motion judge's order dismissing his contempt motion, setting an access order, and determining child support.

The Court of Appeal found no error in the dismissal of the contempt motion or the access order, noting that the children's ages (almost 17 and 14) required their wishes be given significant weight.

The court affirmed that the respondent mother should encourage the children's relationship with the appellant, but ultimately upheld the motion judge's orders as being in the children's best interests.

The appeal was dismissed with no order as to costs.

The father brought a motion for civil contempt against the mother regarding a consent access order.

The motion judge found the contempt was not established but set aside the access order.

The mother appealed.

The Court of Appeal allowed the appeal on consent, finding that contempt is a remedy of last resort and the father should have sought to vary or enforce the order instead.

The court held the motion judge erred in setting aside the order without a contempt finding or under parens patriae jurisdiction.

The original access order was reinstated with temporary modifications.

The appellant appealed orders varying his access to his eight-year-old daughter to supervised access pending a satisfactory mental health evaluation, and imposing a restraining order.

The appellant argued the motion judge failed to consider key evidence and the best interests of the child.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's comprehensive analysis of the appellant's mental health and its effect on the child.

The court noted that the appellant had since undergone a medical assessment, and the respondent was prepared to consent to unsupervised access and the removal of the restraining order in the lower court.

The appellant parents appealed a decision making their two children Crown wards without access.

The children had been in the care of the Children's Aid Society since 2007 due to neglect and a volatile home environment involving domestic violence.

The Court of Appeal found no error in the trial judge's conclusion that the parents could not provide a safe, stable plan and that a supervision order would not adequately protect the children.

The appeal of the Crown wardship order was dismissed.

The respondent and the deceased held title to their matrimonial home as joint tenants.

They were in the process of separating and dividing their matrimonial assets when the deceased died.

The respondent claimed exclusive ownership of the home through the right of survivorship.

The deceased's estate trustees brought an application for a declaration that the estate was entitled to an undivided, one-half interest in the matrimonial home, arguing the joint tenancy had been severed by a course of dealing.

The application judge dismissed the application.

The Court of Appeal allowed the appeal, finding that the application judge erred by adopting a category-based approach to the course of dealing test.

The spouses' conduct, including negotiating an equal division of assets and opening separate bank accounts, demonstrated they were mutually treating their co-ownership as a tenancy in common.

The self-represented father appealed a motion judge's order stipulating that his access to his 15-year-old daughter be only with her consent and prohibiting him from initiating contact with her.

The father argued the order was unjustified, that circumstances had changed, and that the motion judge was biased.

The Court of Appeal dismissed the appeal, finding no evidence of bias and holding that the motion judge properly focused on the best interests of the child, giving appropriate weight to the 15-year-old's expressed wishes to initiate contact herself.

The appellant mother appealed an order for Crown wardship without access regarding her child.

The Court of Appeal agreed with the lower court that the mother failed to provide evidence showing a realistic possibility that contact would be meaningful, beneficial, and in the child's best interests.

Fresh evidence regarding another child was deemed of limited assistance due to differences in age and the mother's involvement.

The appeal was dismissed, affirming Crown wardship without access.