Family and Matrimonial Law - ODC

The moving party sought an extension of time to file a motion for leave to appeal a costs order arising from a parenting time motion.

Although the moving party had a bona fide intention to appeal, a reasonable explanation for the short delay, and there was no prejudice to the responding party, the court dismissed the motion.

The court found that the proposed appeal lacked merit, as the moving party failed to identify any palpable and overriding error or error of law in the highly discretionary costs order.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The appellant appealed a motion judge's order directing the partition and sale of the parties' matrimonial home and dismissing her cross-motion for temporary exclusive possession.

The Divisional Court found that the motion judge applied the correct legal test, balancing the prima facie right to sale against potential prejudice, and appropriately considered the status quo of the parties and their adult children.

Finding no palpable and overriding error or error of law, the court dismissed the appeal and awarded costs to the respondent.

The appellant appealed a temporary order dealing with parenting time and the sale of the matrimonial home.

The appellant argued the motions judge erred by denying an adjournment, failing to consider the best interests of the children, and ignoring child support arrears.

The Divisional Court dismissed the appeal, finding no error in the motions judge's exercise of discretion given the appellant's history of delay.

The court also found the motions judge properly considered the children's best interests and the respondent's sobriety, and appropriately ordered the sale of the home due to the appellant's interference.

Following the dismissal of the moving party's motion for leave to appeal, the responding parties sought costs.

The court had initially ordered no costs because the respondents had not filed costs outlines.

The respondents subsequently contacted the court to request costs, arguing they had uploaded a bill of costs late or should be allowed to make submissions after the decision.

The Divisional Court declined to amend its order, noting that the scheduling direction clearly required all costs materials to be uploaded by a specific date, consistent with the court's practice direction.

No costs were awarded.

The appellant appealed an order dealing with a motion to change child support, challenging the motion judge's findings on imputed income, retroactive child support, special expenses, and costs.

The Divisional Court dismissed the appeal, finding no palpable and overriding error of fact or error of law in the motion judge's detailed reasons.

The court also declined to address additional issues raised by the respondent because no cross-appeal was filed.

The respondent was awarded $1,000 in costs for reasonable disbursements as a self-represented litigant.

The appellant appealed the dismissal of his motion to vary a final child support order.

He argued he had ineffective legal representation, that his adult daughter was no longer a child of the marriage, and that his medical condition prevented him from working.

The Divisional Court dismissed the appeal, finding no evidence of ineffective counsel, no palpable and overriding error in the finding that the daughter remained dependent while completing high school courses, and that the appellant had failed to provide sufficient medical evidence of his inability to work despite prior court orders.

The applicant children's aid society brought an urgent motion to stay a decision of the Child and Family Services Review Board pending judicial review.

The Board had ordered the immediate removal of a two-year-old child from his current foster family to be placed for adoption with a previous foster family.

Applying the RJR MacDonald test modified for the child protection context, the Divisional Court found that the society raised serious questions regarding procedural fairness, and that the immediate removal of the child posed a significant risk of irreparable harm.

The balance of convenience favoured maintaining the status quo in the child's best interests.

The motion for a stay was granted.

The appellant father appealed a motions judge's decision finding that the Ontario Superior Court had jurisdiction to determine custody, access, and support issues for the parties' child, rather than the Quebec Superior Court.

The father also appealed the costs award.

The Divisional Court dismissed the appeal, finding that the motions judge correctly applied the law and made factual findings supported by the evidence, including that the child was habitually resident in Ontario and that a prior Quebec parenting agreement was void due to reconciliation and lack of notice to the mother.

The court also dismissed the father's motion to introduce fresh evidence and upheld the costs award.

The appellant appealed a trial judgment awarding her $47,500 in damages and costs against her former husband for spousal abuse.

She sought a new trial or an increased award of $276,000, arguing the trial judge erred in assessing damages, rejecting expert psychiatric evidence, and denying her claims for lost income.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of damages or his conclusion that the appellant's inability to work was unrelated to the abuse.

The respondent mother and intervener sought to transfer an appeal regarding child support for an adult child from the Divisional Court to the Court of Appeal, arguing that a Charter challenge to the Family Law Act warranted the transfer.

The Attorney General argued the Divisional Court had jurisdiction.

The court held that under the Courts of Justice Act, appeals of final orders for not more than $50,000 lie to the Divisional Court, regardless of whether a Charter issue is raised.

The court found it had no authority to transfer the matter to the Court of Appeal.

The Director of the Family Responsibility Office brought a motion to transfer the appellant's appeal from the Divisional Court to the Court of Appeal.

The appellant had appealed an order dismissing his motion for a refraining order.

The court held that the dismissal of a refraining order is a final order, and under the Courts of Justice Act, the appeal properly lies to the Court of Appeal.

The motion was granted and the appeal was transferred.

Following the dismissal of the appellant mother's stay motion in a child protection proceeding, the respondent sought costs on a substantial indemnity basis.

The court considered the appellant's unreasonable behaviour, including her delay in perfecting the appeal and her failure to accept a reasonable settlement offer.

Applying the principles from Boucher and the factors in Family Law Rule 24(11), the court fixed the respondent's costs at $16,500 plus HST and disbursements, payable forthwith.

The applicant sought judicial review of an OMERS Appeal Sub-Committee decision that found the respondent was the common-law spouse of the deceased and entitled to his pension death benefits.

The applicant argued the tribunal breached procedural fairness and that its decision was unreasonable.

The Divisional Court held that while the tribunal's pre-hearing procedures were fair, its written reasons were too brief and conclusory to allow for meaningful review.

The court could not determine if the tribunal properly applied the legal test for common-law status or correctly placed the burden of proof.

The application for judicial review was granted and the matter remitted for a new hearing.

The applicant wife sought leave to appeal a costs order of $32,107.82 made against her following an unsuccessful motion for partition and sale of a family cottage.

The court reviewed the test for granting leave to appeal an interlocutory order under Rule 62.02(4) of the Rules of Civil Procedure.

The court found that the motions judge had correctly applied the proper principles in awarding costs and that the wife failed to demonstrate conflicting decisions or good reason to doubt the correctness of the order.

The motion for leave to appeal was dismissed.

The applicant wife sought leave to appeal an interlocutory order dismissing her motion for summary judgment for the partition and sale of a jointly owned cottage.

The motion judge had found a genuine issue for trial regarding whether the application was vexatious, given the wife's admitted vandalism of the property.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order.

Following the dismissal of the respondent husband's motion for leave to appeal, the petitioner wife sought costs on a substantial indemnity scale.

The court found that substantial indemnity costs were not warranted and awarded costs on a partial indemnity scale.

The court fixed the costs at $3,750, inclusive of disbursements and GST, noting that preparation time for a leave motion should bear a reasonable relationship to the counsel fee for the motion itself.

The husband brought a motion for leave to appeal an interim order for child and spousal support, arguing the order left him with less than 26% of joint family income.

The court dismissed the motion, finding no error in principle in the motion judge's decision.

The court noted that interim orders are intended to be temporary and that a motion to vary based on changed circumstances or proceeding to an early trial are preferable routes to seeking leave to appeal.

The plaintiff was successful on her appeal regarding interim support and sought costs on a partial indemnity basis in the amount of $17,603.93.

The defendants argued the requested amount was excessive and suggested $4,355.00.

The Divisional Court agreed the plaintiff's bill of costs was excessive, disallowed disbursements for the motion for leave to appeal, and reduced travel expenses.

The court fixed costs in favour of the plaintiff at $6,500 for fees inclusive of GST, plus $1,376.25 in disbursements.

The applicants, foster parents of an Aboriginal Crown ward, sought an urgent judicial review and interim injunction to prevent the children's aid society from removing the child from their care and transferring her to a First Nation in British Columbia.

The society planned to move the child just weeks before she would have been in the applicants' care for two years, at which point they would acquire additional statutory rights.

The court found that the society's haste was motivated by a desire to avoid the applicants gaining these rights, rather than the child's best interests.

The court granted an interim order prohibiting the removal of the child pending the completion of the administrative and judicial reviews.