Family and Matrimonial Law - ODC

The moving party sought leave to appeal a decision regarding the production of documents and removal of counsel.

The Divisional Court granted leave in part, noting conflicting jurisprudence on whether the intent to commit civil fraud vitiates solicitor-client privilege, and similar issues regarding documents photographed in breach of privacy.

Leave to appeal the refusal to remove the wife's lawyer as counsel of record was denied.

The moving party sought leave to appeal the decision of Derstine J. dated April 9, 2025.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay the responding party $5,000 in all-inclusive costs.

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 appellant sought to appeal an order dismissing his motion to vary a final family law order.

The court issued a notice under Rule 2.1.01 that the appeal may be dismissed as frivolous.

The appellant argued that an annulment of his marriage extinguished his obligations under the prior order.

The court found the appeal devoid of merit, noting the prior order remained valid despite the subsequent annulment, and dismissed the appeal.

The appellant appealed a trial decision that dismissed his claim for compensatory spousal support and limited non-compensatory support to 19 months following a 17-year marriage.

The Divisional Court allowed the appeal, finding the trial judge erred in law by dismissing the compensatory claim based on the parties' choices during the marriage rather than the actual economic consequences of its breakdown.

The court also found the trial judge erred by departing from the Spousal Support Advisory Guidelines duration range without providing reasons.

The matter was remitted for a new trial.

The appellant father appealed a trial decision awarding primary care and residence of the child to the respondent mother.

The father argued the trial judge erred in law by failing to give appropriate weight to the child's Indigenous cultural, linguistic, and spiritual upbringing and heritage.

The Divisional Court dismissed the appeal, finding that the trial judge correctly identified the legal principles and thoroughly examined the evidence.

The trial judge reasonably concluded that both parents were committed to and capable of fostering the child's Indigenous heritage, making it a non-decisive issue in this case.

No order as to costs was made.

At the outset of a judicial review, the Divisional Court raised a preliminary issue regarding the jurisdiction of the Internal Complaints Review Committee and the Child and Family Services Review Board under the Child Youth and Family Services Act, 2017.

The court directed that this preliminary issue be determined prior to the hearing on the merits and adjourned the matter for submissions.

The moving party sought leave to appeal an interim order that denied his request to file additional evidence on a motion that had already been argued and was under reserve.

The responding party requested the motion be dismissed under Rule 2.1.02 of the Rules of Civil Procedure as frivolous, vexatious, or an abuse of process.

The Divisional Court found the motion for leave to appeal was doomed to fail because the underlying motion had not yet been decided, making the appeal premature.

The motion for leave to appeal was dismissed.

The moving party sought leave to appeal an order of Fraser J. The Divisional Court granted leave to appeal, but restricted it solely to issues concerning COVID-19 vaccination.

The court recommended the appeal be heard alongside a related case and awarded costs of $2,500 to the moving party.

The moving party sought leave to appeal a February 17, 2021 decision regarding interim spousal support.

The Divisional Court granted leave to appeal on three specific issues: whether the motion judge erred by ordering a net amount of spousal support contrary to the Income Tax Act, whether a material change in circumstances was required to vary an interim without prejudice order, and whether the motion judge relied on irrelevant considerations or made palpable and overriding errors in determining the temporary spousal support amount.

Costs of $5,000 were awarded to the moving party.

The appellant appealed a motion judge's decision that he had no right to unilaterally set off disputed amounts against a court-ordered costs award in a family law proceeding.

The Divisional Court upheld the motion judge's finding that neither the Courts of Justice Act nor equitable principles permit unilateral set-off against a court order.

However, the Court allowed the appeal regarding the motion judge's costs award, reducing it from substantial indemnity to partial indemnity, finding the motion judge erred in principle by treating the appellant's maintained position as an additional factor justifying enhanced costs.

The father sought leave to appeal a decision dismissing his motion to change a temporary, without prejudice access schedule and granting temporary sole custody to the mother.

The motion judge had required the father to prove a material change in circumstances to vary the access order.

The court granted leave to appeal on the access issue, finding good reason to doubt the correctness of applying the material change test to a without prejudice temporary order, which raised a matter of public importance.

Leave to appeal the custody order was denied as it was fact-specific.

The moving party brought a motion to set aside an appeal decision after discovering that one of the panel judges had briefly represented him in a related matter 16 years prior, before her appointment to the bench.

Neither the judge nor the moving party recalled the relationship at the time of the appeal hearing.

Applying the objective standard for reasonable apprehension of bias, the court found that prudence dictated setting aside the decision and constituting a new panel to re-hear the appeal.

The mother sought leave to appeal an interim order that transferred the primary residence of the child to the father.

The motion judge had relied heavily on a report from the Office of the Children's Lawyer, which raised serious concerns about the mother's mental health, specifically her schizophrenia and medication non-compliance.

The mother argued that the motion judge erred in relying on the untested report to change the status quo prior to trial.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the interim decision and noting that the case was fact-driven and did not raise matters of public importance warranting appellate review.

The applicant father sought an extension of time to appeal a 2008 order finding his child in need of protection and making her a Crown ward.

The child had since been placed for adoption and the adoption finalized.

The respondent Society relied on section 69(5) of the Child and Family Services Act, which prohibits extending the time for an appeal where a child has been placed for adoption.

The court found no procedural unfairness or other basis to circumvent the statutory bar and dismissed the motion.

The respondent parents sought costs on a full indemnity basis against the children's aid society following an appeal.

The court applied the Family Law Rules, noting that the presumption of costs to the successful party does not apply in child protection cases involving a government agency.

The court found that the society did not act unfairly or unreasonably in pursuing the appeal, as it acted out of concern for the child's best interests and was supported by the Office of the Children's Lawyer.

Consequently, no costs were awarded.

The mother appealed an order making her two young children Crown wards with no access, and moved for a stay to reinstate access pending the appeal.

The Children's Aid Society brought a cross-motion for summary judgment to dismiss the appeal under Rule 38(28) of the Family Law Rules.

The court found that the trial judge had given adequate consideration to the proposed kinship placement with the maternal grandparents and made no palpable and overriding errors.

Concluding that the appeal had no chance of success, the court granted summary judgment dismissing the appeal.

The mother's motion for a stay was also dismissed, as there was no serious issue to be tried and reinstating access was not in the children's best interests.

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.

The husband appealed and the wife cross-appealed interim spousal support orders.

The parties had signed a separation agreement containing a spousal support release, alongside an employment contract for the wife in the husband's company.

The husband's company subsequently terminated the wife's employment.

The Divisional Court found that the employment contract implicitly functioned as a support provision.

Applying the Miglin framework, the court held that the wife's termination constituted a material change in circumstances entitling her to interim support.

The court set aside the lower court's orders and fixed interim spousal support at $800 weekly.

The father applied to reduce his child support obligations, claiming the child was in his custody for at least 40 percent of the time.

The motions judge granted the application and reduced the support retroactively, without making findings on income or analyzing the factors under section 9 of the Federal Child Support Guidelines.

The mother appealed.

The Divisional Court allowed the appeal, holding that the principles from Francis v. Baker apply to all statutory exceptions under the Guidelines, requiring a presumption in favour of the Guidelines amount and clear and compelling evidence to justify a deviation.

The original support order was restored.