Family and Matrimonial Law - ODC

The appellant's counsel brought a motion to be removed as solicitor of record in the Divisional Court proceedings due to a breakdown in the solicitor-client relationship.

The appellant did not oppose the motion, but the respondent opposed it, citing concerns about the timing given an impending motion in the Superior Court of Justice.

The Divisional Court granted the motion to remove counsel effective March 29, 2024, noting that the removal applies only to the Divisional Court proceedings and is without prejudice to the pending matters in the Superior Court of Justice.

The appellant sought to appeal an order discontinuing a trial and directing that a new trial be scheduled before a different judge.

The Divisional Court determined that the order was interlocutory, not final, as it did not dispose of the litigation.

The court issued a notice under Rule 2.1.01 of the Rules of Civil Procedure, indicating it was considering dismissing the appeal as an abuse of process for lacking jurisdiction, but provided the appellant an opportunity to make written submissions.

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 moving party sought an extension of time to bring a motion for leave to appeal an order requiring him to produce corporate financial disclosure and pay costs in a family law proceeding.

The responding party opposed the extension, arguing the moving party lacked a firm intention to appeal and was simultaneously pursuing a motion to change the order.

The court applied the four-part test for extending time and found that the moving party had formed a bona fide intention to appeal within the time limit, there was no prejudice to the responding party, the delay was explained by a change of counsel, and the proposed appeal had some merit.

The motion for an extension of time was granted.

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 moving party, the stepfather of the children involved in a custody dispute, sought leave to appeal an order requiring him to provide his consent for the Office of the Children's Lawyer (OCL) to obtain his Children's Aid Society and police records.

The OCL had been appointed to represent the children under section 89(3.1) of the Courts of Justice Act.

The stepfather argued that as a non-party not seeking custody, he should not be compelled to disclose these records.

The court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the order, as the records were relevant to determining the best interests of the children and ensuring a safe home environment.

The appellant mother appealed a summary judgment order making her child a Crown ward without access.

She sought to introduce fresh evidence, arguing her former counsel provided ineffective representation by failing to request disclosure and an adjournment.

The Divisional Court admitted the fresh evidence but dismissed the appeal, finding the new evidence would not have changed the outcome given the mother's history of substance abuse and non-compliance.

The court also rejected arguments that the motion judge erred in his treatment of sibling access and the denial of access to the mother, finding no errors in the consideration of the child's best interests and need for permanency.

The appellant appealed a family law trial decision to the Divisional Court.

The trial judgment ordered periodic child support and spousal support payments that, in aggregate, exceeded $50,000 annually.

Although the parties agreed the Divisional Court had jurisdiction because only the spousal support (under $50,000) was being appealed, the court held that jurisdiction is determined by the total amount of periodic payments ordered in the judgment, not the amount in issue on appeal.

The appeal was transferred to the Court of Appeal.

The husband brought a motion for leave to appeal an interim support order made during an application to vary.

He argued the motions judge lacked jurisdiction under the Divorce Act to grant interim relief on a variation application.

The Divisional Court dismissed the motion, finding no conflicting principles in the case law and no reason to doubt the correctness of the decision.

The court noted the motions judge remained seized of the matter and the husband would have a full right of appeal once a final decision was made.

The parties made costs submissions following a successful motion by the respondent father to set aside an appeal decision based on a reasonable apprehension of bias.

The appellant daughter sought costs thrown away for the initial appeal hearing, while the respondent father sought costs as the successful party on the motion to set aside.

The Divisional Court declined to award costs to either party, noting that the motion to set aside was based on the appearance of judicial impartiality and was unconnected to the merits of the underlying dispute or the parties' conduct.

The court left the determination of costs for the preparation of the appeal materials to the new panel that will re-hear the appeal.

The appellant appealed a trial judge's order for child and spousal support, arguing the judge erred in allowing a late amendment to claim spousal support, imputing too little income to the respondent, and creating undue hardship.

The Divisional Court dismissed the appeal, finding no palpable and overriding error.

The trial judge properly exercised discretion in allowing the amendment, had an evidentiary basis for the imputed income given the respondent's mental health issues, and the undue hardship argument was not raised at trial and could be addressed at an upcoming review.

The appellant mother appealed a Crown wardship order.

At the hearing, a non-party requested to observe the proceedings.

The Divisional Court allowed the non-party to observe, finding the open court principle prevailed, subject to a strict publication ban under the Child and Family Services Act.

The court also granted the appellant's request for an adjournment to retain counsel or prepare, noting insufficient time remained to hear the appeal and fresh evidence motions that day.

The court seized itself of the matter and ordered the appellant to have no contact with the child pending the final determination.

The self-represented appellant failed to attend the hearing of her appeal regarding the sale of the matrimonial home, having apparently left the country.

The Divisional Court dismissed the appeal as abandoned and noted that, in any event, the appeal was from an interlocutory order for which no leave had been sought or granted.

Costs of $5,000 were awarded to the respondent, payable from the appellant's share of family assets upon equalization at trial.

The appellant appealed a trial decision regarding support, arguing the trial judge erred by failing to decide whether to impute income to the respondent for 2012.

The Divisional Court agreed, finding the trial judge effectively made an interlocutory order by leaving the issue subject to review upon additional disclosure.

The appeal was allowed and the issue of imputation of income and support from 2012 onwards was remitted back to the trial judge for a final determination.

The applicant and respondent both sought costs following a leave to appeal application where success was divided.

The applicant sought $15,000 on a partial indemnity basis, arguing they were successful on the dominant issue regarding the appointment of a litigation guardian.

The respondent sought $10,000, arguing they were successful on five of the six issues.

The court found that success was divided and ordered that no costs be payable by either party.

The mother sought costs following a contested motion regarding child access.

The mother had made an offer to settle that mirrored the final order, except for a restriction on the children's contact with a specific individual and a provision for no costs.

The father had unreasonably insisted on supervised access, necessitating the contested motion.

The court found the mother was presumptively entitled to costs under Rule 18(14) of the Family Law Rules.

However, the court reduced the costs awarded due to the mother's unreliable evidence and divided success on a motion to strike.

The father was ordered to pay costs fixed at $6,030.53.

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 husband appealed a trial judgment awarding the respondent wife $1,000 per month in spousal support, arguing it constituted impermissible double recovery from his equalized pension.

The wife cross-appealed for increased retroactive support.

The Divisional Court allowed the husband's appeal, finding the trial judge erred in law by encroaching on the equalized survivor pension to fund support.

The court reduced spousal support to $140 per month, representing half of the unequalized pre-marriage portion of the pension, and dismissed the wife's cross-appeal.

The appellant appealed a summary judgment dismissing her claims for spousal support, a restraining order, and a $24,000 lump sum pursuant to a marriage contract.

The Divisional Court determined it lacked jurisdiction under section 19(1)(a) of the Courts of Justice Act because the total monetary value of the claims could not be ascertained to be under $25,000.

The court transferred the appeal to the Court of Appeal for Ontario pursuant to section 110 of the Courts of Justice Act.

The appellant appealed an order refusing to set aside a final child support variation order made after he moved to British Columbia.

The Divisional Court allowed the appeal and extended the time to appeal the original variation order.

The majority held that under sections 17(1) and 18(2) of the Divorce Act, a final order cannot be made against an out-of-province respondent unless they attorn to the jurisdiction or consent; otherwise, only a provisional order can be made.

The matter was remitted for a rehearing.