Family and Matrimonial Law - ODC

The moving party, a self-represented mother, sought an extension of time to file a motion for leave to appeal a temporary placement order that placed her children in the care of their father under the supervision of the children's aid society.

The court applied the four-factor test for an extension of time.

While accepting the mother's explanation for the delay, the court found that the prejudice to the children caused by litigation uncertainty and the unlikelihood of leave being granted weighed against the extension.

The motion was dismissed with no order as to costs.

The appellant appealed a motion judge's order for the partition and sale of the jointly owned matrimonial home pending trial.

The parties had been separated since 2011, and the appellant had resided in the home since then, wishing to purchase the respondent's interest.

The Divisional Court dismissed the appeal, finding no error in the motion judge's application of the Partition Act.

The court held that the appellant failed to demonstrate that a pre-trial sale would prejudice his equalization claims or his ability to bid on the property in the open market.

The appellant brought a motion for leave to extend the time to file a motion for leave to appeal an interlocutory order.

Upon reviewing the chronology, the parties agreed that the motion for leave to appeal was actually served and filed within the time provided by the Rules of Civil Procedure.

On consent, the motion for leave to extend time was withdrawn, and a case conference was directed for related matters.

The appellant father appealed a summary judgment order finding his two children in need of protection and placing them in the custody of their maternal aunt.

The father argued ineffective assistance of counsel, procedural unfairness, and errors in fact-finding regarding his sobriety and history of domestic violence.

The Divisional Court dismissed the appeal, finding that the ineffective assistance claim failed because former counsel was not given notice, there was no procedural unfairness, and the motion judge's factual findings were supported by the evidence and free of palpable and overriding error.

The court held that the children required stability and permanency, which the current custodial arrangement provided.

The appellant mother sought to appeal an interlocutory order of the Superior Court of Justice that had dismissed her appeal from an interlocutory custody order of the Ontario Court of Justice.

The Court of Appeal had previously declined jurisdiction, finding the order to be interlocutory.

The Divisional Court issued a notice under Rule 2.1.01 of the Rules of Civil Procedure, noting that section 19(4) of the Courts of Justice Act precludes an appeal from an interlocutory order of a Superior Court judge made on appeal from an interlocutory order of the Ontario Court of Justice.

The Divisional Court dismissed the appeal as frivolous, vexatious, and an abuse of process.

The appellant appealed a decision reducing her spousal support, arguing the motions judge erred by not directing a trial and by failing to properly account for the compensatory nature of her support.

The appellant also sought to introduce fresh evidence of her historical tax returns.

The Divisional Court dismissed the motion to introduce fresh evidence, finding it did not meet the Palmer test.

The court dismissed the appeal, holding that the motions judge made no palpable and overriding error in her factual findings, including the finding that the appellant had cohabited with her new partner prior to marriage, and correctly applied the law regarding material change in circumstances.

The grandparents brought a motion under s. 21(5) of the Courts of Justice Act to set aside an order of a single judge of the Divisional Court that dismissed their appeal for delay.

The underlying child protection case involved a constitutional challenge to the definition of 'Indian or native person' under the Child and Family Services Act.

The Divisional Court panel found that the motion judge erred by not considering the merits of the constitutional challenge, which had been properly included in the trial judge's reconsideration.

The panel concluded the appeal had a real chance of success and set aside the order dismissing the appeal, allowing the grandparents to perfect their appeal.

The applicant sought leave to appeal an interim order that imputed an annual income of $75,000 to him and ordered him to pay increased child and spousal support.

The applicant argued the motions judge imputed income without regard to documentary evidence.

The Divisional Court dismissed the motion for leave to appeal, finding that the motions judge was entitled to draw inferences from the applicant's lifestyle and expenses, and that the applicant failed to establish a conflicting decision or a matter of general importance.

Costs of $2,000 were awarded to the respondent.

The appellant mother appealed orders determining that Ontario had jurisdiction to deal with custody and access of the parties' child under the Children's Law Reform Act.

The family had moved to Hawaii in 2010, but the child returned to Ontario for the summer.

The Divisional Court found the motion judge erred in concluding the child was habitually resident in Ontario and that the child would suffer serious harm if returned to Hawaii.

The appeal was allowed, and the orders were set aside, as Ontario lacked jurisdiction.

The applicant sought leave to appeal an interlocutory order denying her temporary spousal support and awarding $2,500 in costs to the respondent.

The court applied the two-part test under Rule 62.02(4) of the Rules of Civil Procedure.

While acknowledging another judge might have reached a different conclusion on entitlement, the court found the applicant failed to demonstrate that the proposed appeal involved matters of general importance transcending the parties' interests.

The application for leave to appeal was dismissed with no costs.

The appellant mother appealed a child protection judgment making her three children Crown wards.

She sought to introduce fresh evidence and argued the trial judge erred by admitting and relying heavily on a court-ordered parenting assessment by Dr. Lynch, while disregarding competing medical reports.

The Divisional Court dismissed the appeal, finding the fresh evidence inadmissible as it was available at trial.

The court held the trial judge made no palpable and overriding error in admitting Dr. Lynch's report under section 54 of the Child and Family Services Act, nor in preferring his evidence over the appellant's experts.

Claims of judicial bias and ineffective trial counsel were also dismissed.

The appellant father appealed a final order requiring him to pay prospective and retroactive child support, arguing the motions judge erred in finding his income, providing inadequate reasons, and misapplying the tests for retroactive support and undue hardship.

The Divisional Court found no palpable and overriding error in the income determination and held the reasons were adequate.

While the motions judge conflated the 'undue hardship' test for prospective support with the 'hardship' factor for retroactive support, the Divisional Court applied the correct test and upheld the retroactive award due to the father's long history of underpayment and failure to disclose income.

The appeal was dismissed.

The appellant appealed a child support order, challenging the imputation of rental income, retroactive support, and the imputation of income during a period of voluntary leave.

The Divisional Court upheld the decisions on rental income and retroactive support.

However, the court found a palpable and overriding error in the motions judge's conclusion that there was no evidence the appellant's leave was taken to care for his infant child.

The court allowed the appeal in part, setting aside the imputation of income for the leave period and adjusting the costs order accordingly.

The appellant husband appealed three provisions of a final order made at a settlement conference regarding retroactive child support, retroactive spousal support, and ongoing spousal support.

The Divisional Court found that the conference judge bullied the self-represented husband into an equivocal consent, misinformed him about the law, made inappropriate comments about his cultural background, and denied him procedural fairness.

The appeal was allowed, and the support provisions were set aside without prejudice to the wife's claims.

The appellant appealed a decision dismissing his motion to vary a final child support order.

He argued the motion judge failed to consider evidence of a material change in circumstances, erred in allowing the respondent to amend her pleadings to seek a non-dissipation order for the children's RESPs, and demonstrated bias.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings, no prejudice from the pleading amendment, and no basis for the bias claim.

The appellant father appealed a child support order, arguing the trial judge erred in finding his step-daughter was a child of the marriage, in determining his income to be $40,000, and in ordering the full table amount for his biological daughter despite a joint custody order.

The Divisional Court dismissed the appeal, finding no error in principle or significant misapprehension of the evidence.

The trial judge properly applied the Chartier test for the step-child, made credibility findings regarding the appellant's income, and correctly noted the appellant's parenting time did not meet the 40 percent threshold under section 9 of the Child Support Guidelines.

The appellant father appealed an interlocutory order finding that the Ontario Superior Court had jurisdiction to hear the respondent mother's application for custody and support under the Children's Law Reform Act.

The parents had a joint custody arrangement where the children alternated weeks between the mother's home in Ontario and the father's home in Quebec.

The Divisional Court found the motions judge erred by failing to determine the children's habitual residence.

The Court held that under s. 22(2)(b) of the CLRA, a child can have two concurrent habitual residences in appropriate circumstances.

While the Ontario court had jurisdiction, the Court declined to exercise it under ss. 25 and 42(2), finding that Quebec was the more appropriate forum given the parties' extensive history of litigating the matter there.

The appellant appealed an order that dismissed his claim for reimbursement of child support overpayments.

A previous final judgment had already ordered the respondent to pay the appellant for the overpayments.

The Divisional Court held that the motion judge was functus officio and lacked jurisdiction to reconsider the final judgment.

The appeal was allowed, the subsequent order was set aside, and the respondent was permitted to set off outstanding costs awards against the judgment debt.

The Director of the Family Responsibility Office (FRO) appealed a costs award made against it for failing to pay out a surplus of funds accumulated under a family court support order.

The motion judge had found FRO's retention of the funds unreasonable and contrary to its statutory duties.

The Divisional Court allowed the appeal, holding that FRO was not a party to the proceedings and therefore could not be subject to a costs award under section 131 of the Courts of Justice Act.

Furthermore, the court found that FRO's policy of not paying out surplus funds without a court order was not unreasonable.

The moving party sought leave to appeal an order dismissing a motion to compel a non-resident party to attend in Ontario for questioning under Rule 20(14) of the Family Law Rules.

The moving party argued there were conflicting decisions on whether the rule limits the court's discretion to order a non-resident to come to Ontario.

The Divisional Court dismissed the motion, finding that the allegedly conflicting decision relied on the Rules of Civil Procedure rather than the Family Law Rules, and therefore did not constitute a conflicting decision.