Family and Matrimonial Law - OCA

The 14-year-old deceased was killed when a handball net toppled onto him during a physical education class.

His parents and sister successfully sued the school board.

The jury awarded $100,000 to each parent and $50,000 to the sister for loss of guidance, care, and companionship under the Family Law Act.

The trial judge also awarded the plaintiffs solicitor-and-client costs.

The school board appealed the damages and costs.

The Court of Appeal upheld the parents' awards as high but within the accepted range, but reduced the sister's award to $25,000 as inordinately high.

The costs order was varied to party-and-party costs, as the plaintiffs' settlement offers did not comply with Rule 49.10.

The parties cohabited for 8.5 years.

After separation, the respondent successfully sued for spousal support and unjust enrichment.

The trial judge awarded $600/month for 48 months in spousal support and a $46,300 monetary award representing a 45% constructive trust interest in the appellant's house and RRSPs.

The appellant appealed.

The Court of Appeal upheld the spousal support order but varied the unjust enrichment award.

The Court found that unjust enrichment only occurred during the first four years of cohabitation when the respondent's contributions helped the appellant pay off his mortgage.

Applying Peter v. Beblow, the Court held that a monetary award based on 'value received' was adequate, rather than a constructive trust based on 'value survived'.

The monetary award was reduced to $15,000.

The appellant appealed a trial judgment regarding the beneficial ownership of a Florida property gifted by the respondent's father.

The trial judge had concluded the gift was intended only for the respondent.

The Court of Appeal allowed the appeal, finding the trial judge failed to properly analyze the donor's intention at the time the gift was made, which evidence showed was transferred to both parties for tax advantages.

The judgment was varied to reflect that the gift was to both parties, and trial costs were adjusted.

The appellant appealed a trial judge's decision regarding child custody, arguing that an earlier consent order was final and could only be varied upon showing a material change in circumstances.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly accepted the parties' agreement that the earlier order was interim.

The trial judge was therefore entitled to hear evidence and determine custody and access based on the child's best interests.

On a family law appeal, the appellant challenged the inclusion of sick leave credits in net family property, the retirement age used for pension valuation, a paragraph of the judgment characterized as a support order triggered by default in payment, and the trial costs order.

The court held that the evidentiary record supported the trial judge’s treatment of the sick leave credits and pension valuation, and that the impugned paragraph was authorized on consent and properly viewed as support rather than conversion of a property order.

The court declined to interfere with the costs ruling, including the application of Rule 49.

The appeal was dismissed subject only to a consent variation reducing the equalization payment.

The appellant insurer appealed a declaration requiring payment of life insurance proceeds to the respondent, who was the named beneficiary under a policy maintained pursuant to a separation agreement.

The insured died accidentally from cocaine intoxication after ingesting narcotics, and the insurer argued both an implied contractual exclusion for criminal acts and a public policy bar against recovery flowing from criminal conduct.

The Court of Appeal held the policy was unambiguous, the insured did not intend to cause his own death, and the respondent claimed as an ordinary beneficiary rather than through the insured's estate.

Applying prior authority on the crime-profit rule, the court held that public policy did not bar recovery by an innocent beneficiary and dismissed the appeal.

The appellant challenged an order requiring it, as an income source for a support payor, to remit support enforcement funds to the respondent.

The appellant accepted that the evidentiary findings against it were supported but argued that the court should nonetheless have made a reasonable estimate of income despite missing disclosure.

The Court of Appeal held that, given the appellant's knowledge of the substantial claim and its failure to produce documents that could resolve the dispute, the judge was entitled to draw an adverse inference and accept the amount claimed.

The appeal was dismissed with costs.

The appeal concerned the interpretation of a prior judgment arising in a bankruptcy context and its effect on an equalization entitlement linked to a pension plan.

The appellant argued that the prior order converted the equalization payment into an interest in the pension plan, rendering it not exigible by the respondent.

The court accepted that interpretation and rejected the view that the pension interest served only as security for a fixed money judgment.

The appeal was allowed, the order below was set aside, and the respondent's motion was dismissed, with costs to the appellant limited to disbursements.

Appeal from an order varying a pre-Guidelines child support order to the table amount under the Federal Child Support Guidelines.

The court held it was bound by prior Ontario authority requiring the party seeking variation to establish a material change in circumstances beyond the mere coming into force of the Guidelines, but strongly questioned that authority and recommended reconsideration.

The court also held that, following the Supreme Court’s decision on s. 4(b), a high-income payor must have the opportunity to show that the table amount is inappropriate.

Fresh evidence was refused, the variation order was set aside, and the matter was remitted for a new hearing.

In a family law appeal involving an exceptionally high-income payor, the court held that the presumptive Table amount under s. 4 of the Federal Child Support Guidelines could be displaced where clear and compelling evidence showed it was inappropriate.

The court found the child support award required a fresh hearing because the trial judge had been bound by pre-Francis authority and had made insufficient findings on the child's means, needs, and circumstances.

The cross-appeal on spousal support was also allowed because the trial judge failed to consider all objectives in s. 15.2(6) of the Divorce Act.

The court dismissed the custody and wedding gift issues, but held that the wealthy payor should ordinarily bear the costs of litigating child support where the custodial parent is forced to defend the presumptive Table amount.

The appellant appealed a family law judgment denying spousal support.

After commencing divorce proceedings, the respondent argued that s. 36(1) of the Family Law Act automatically stayed the appeal, while the appellant sought to adduce fresh evidence concerning post-judgment deterioration in her economic circumstances.

The court held that s. 36(1) did not extinguish or stay an appeal from an already adjudicated support claim, and refused the proposed evidence because it was new evidence arising after trial rather than fresh evidence capable of affecting the original adjudication.

On the merits, the court found no reversible error in the trial judge’s assessment of the evidence regarding economic disadvantage and upheld the denial of spousal support.

The appellant challenged a family law decision upholding a trial judgment that granted the respondent unsupervised access, found the appellant in contempt, and awarded costs against her.

The Court of Appeal held that the trial judge carefully reviewed the evidence, made findings of fact amply supported by the record, applied the relevant legal principles, and properly exercised discretion on costs.

The appeal was characterized as an improper attempt to re-try the case and was dismissed in all respects.

The cross-appeal was also rejected, except that any remaining issues were left to be addressed in the Ontario Court on proper application.

The appellant challenged an order concerning the termination date for child support and resulting arrears.

The court held that, although the record was unsatisfactory, the child remained dependent only until completion of secondary school in June 1995, and the reasonable inference was that dependency ended by December 1995 because there was no evidence of further planned schooling and the child had subsequent employment income.

The order below was varied to reduce the principal arrears and recalculate interest using the same ratio applied by the motions judge.

In all other respects, the appeal was dismissed and no costs were awarded.

In this family property appeal arising from a fact-driven trial, the appellant challenged the trial judge’s findings, particularly concerning ownership of a triplex, and alleged reasonable apprehension of bias.

The court held that the factual findings were amply supported by the record and disclosed no palpable or overriding error.

It also rejected the bias allegation and dismissed the contingent cross-appeal, including the claim for pre-judgment interest.

A motion to admit fresh evidence was also dismissed, and appeal costs were fixed in favour of the respondent.

After a 23-year unmarried cohabitation, the appellant challenged a trial judgment that found the respondent had been unjustly enriched through her child care, household management, financial contributions, and work in the family business.

The Court of Appeal upheld the finding that the appellant was enriched, the respondent suffered a corresponding deprivation, and there was no juristic reason for the enrichment.

It also upheld a remedial award that effectively increased the respondent's asset position by $170,000 through property transfers and cash, finding the result fell within the generous ambit of reasonableness in long-term domestic unjust enrichment cases.

The respondent's cross-appeal seeking a 50 percent share of total assets was dismissed.

In a family law appeal concerning spousal support after a long-term marriage, the appellant challenged a trial judgment that failed to make findings on disputed issues or explain the support award.

Although the inadequacy of the reasons would normally have warranted a new trial, the court chose to determine the matter on the existing record to avoid further hardship to the parties.

The court rejected both parties' income positions as unrealistic, imputed a higher annual income to the payor than he asserted, and fixed support at $2,500 per month.

The appeal was allowed to reduce the support award, but costs of both the trial and the appeal were awarded to the respondent.

The appellants challenged judgments awarding the respondent recovery on a counterclaim and an equalization payment arising from a family farm and matrimonial property dispute.

The court held that the evidence supported the findings that amounts advanced by the respondent were repayable and that the valuation of assets and equalization calculation were supported by the record.

The court rejected a late-raised unequal division argument because it had not been pleaded and was not disputed at trial.

The order directing payment from monies paid into court from the sale of the milk quota was also upheld.

The appellants challenged findings that they engaged in fraudulent conveyances intended to permit the appellant husband to seek termination of child and spousal support obligations.

The Court of Appeal held that the trial judge's findings of fact and credibility were amply supported by the evidence, including suspicious transfers of shares and property for inadequate consideration and in secrecy.

The court also upheld the tracing of proceeds to a residential property and the conclusion that support obligations would not be honoured.

The appeal, including the challenge to the costs award, was dismissed with costs.

The appeal concerned whether an Ontario court had jurisdiction under the Divorce Act to make and later vary spousal support orders following a foreign divorce.

The court held that the 1990 consent order increasing spousal support was made without jurisdiction because only the court that granted the divorce could then grant corollary relief under s. 4, and the parties' consent could not cure that defect.

It further held that the 1998 variation order was also without jurisdiction because a null order cannot be varied and Canadian courts have no jurisdiction under the Act to vary foreign support orders.

The appeal was allowed, the variation order was set aside insofar as it related to spousal support, and no costs were awarded.

On an appeal from a Rule 21 determination in a fatal motor vehicle case, the court held that family members' independent nervous shock claims were barred by s. 266 of the Insurance Act because the claimants themselves did not meet the statutory threshold.

However, the majority held that s. 61(1) of the Family Law Act permits recovery for a family member's pecuniary loss in the form of lost income resulting from the death, and is not confined to loss of expected financial benefits from the deceased.

Because the trial judge later took the opposite view and made no necessary factual findings on causation and loss, the trial judgment was set aside and a new trial ordered on the loss of income claim.

No costs were awarded because success was divided.