Family and Matrimonial Law - ODC

The moving party sought an extension of time to seek leave to appeal three interlocutory orders that set aside a noting in default and struck his pleadings with leave to amend.

The court applied the test for extending time, focusing on the justice of the case.

The court found that the proposed appeal lacked merit, as the motion judge's discretionary decisions were entitled to deference and did not raise issues of broader importance.

The motion was dismissed to avoid further delay in the underlying family law proceeding, and costs were awarded to the responding party.

The moving party sought leave to appeal an order of Faieta J. dated July 17, 2023.

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

The moving party brought a motion for leave to appeal the orders of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal with no order as to costs.

The self-represented applicant failed to serve and file his motion record and factum for two motions for leave to appeal by the deadline set in a case management endorsement.

The respondent brought motions to dismiss the leave motions for delay under Rule 61.13(8) of the Rules of Civil Procedure.

The Divisional Court directed the motions to the Registrar to issue orders dismissing the motions for leave to appeal for delay, with costs of $750 per motion awarded to the respondent.

The appellant mother sought to appeal a temporary order adding the child's kin as parties to a child protection proceeding for the limited purpose of seeking access.

The Divisional Court determined the order was interlocutory, requiring leave to appeal.

Applying the test under Rule 62.02(4) of the Rules of Civil Procedure, the court denied leave, finding no conflicting decisions, no reason to doubt the correctness of the order, and no issue of general importance.

The moving party sought leave to appeal an order requiring him to disclose certain information.

He had also brought a separate motion before the motion judge to correct a mistake in the same order pursuant to rule 25(19)(b) of the Family Law Rules.

The Divisional Court held that the leave to appeal motion was premature and adjourned it until the motion to correct the order was decided and finalized.

The moving party, a self-represented father residing in Australia, sought an extension of time to bring a motion for leave to appeal an interlocutory order that continued an ex parte order granting sole custody to the responding party mother and restraining the father from contacting her or the children.

The Divisional Court dismissed the motion, finding that while the father intended to appeal and provided an explanation for the delay, the proposed appeal lacked merit as it did not meet the test for leave to appeal an interlocutory order under Rule 62.02(4).

The court emphasized the need for the family law issues to be adjudicated on their merits without further delay.

The applicant brought a motion for leave to appeal the unreported decision of Hood J. dated October 31, 2019.

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

The appellant husband appealed an order directing the sale of a jointly owned property prior to trial.

The Divisional Court reviewed the motion judge's decision, noting that a joint owner has a prima facie right to an order for sale unless it would cause prejudice, hardship, or injustice.

The court found that the motion judge applied the correct legal test, properly weighed the evidence, and appropriately exercised her discretion in ordering the sale while protecting the husband's interests by restraining the wife from encumbering her own property.

The appeal was dismissed.

The applicants, Dilico Anishinabek Family Care and Fort William First Nation, brought a motion for a stay of a Minister's Directive and Designation pending their applications for judicial review.

The Directive designated Tikinagan Child and Family Services to provide child and family services to certain Indigenous children in Thunder Bay.

The court applied the three-part test for a stay.

While finding a serious issue to be tried, the court concluded the applicants failed to establish irreparable harm or that the balance of convenience favoured granting the stay.

The motion was dismissed, with written reasons to follow.

The applicant father brought an urgent, without-notice motion for a stay pending appeal of an order granting the respondent mother leave to travel to Sudan with their ten-year-old child over the holidays.

The court applied the three-part test for a stay and found that the applicant failed to demonstrate a strong case on appeal, that the alleged irreparable harm was highly speculative, and that the balance of convenience favoured the child's best interests in taking the trip.

The motion for a stay was dismissed.

The appellant appealed an order made at a settlement conference which found her claim for equalization of net family property to be statute-barred.

The respondent conceded that the settlement conference judge lacked jurisdiction to make that order, but argued it was justified under the Family Law Rules.

The Divisional Court held that while judges can make orders at settlement conferences to promote fairness, notice must be given.

Since no notice was given regarding the limitation period issue, the appeal was granted and the order was set aside.

The father appealed an order requiring him to return his child to Denmark pursuant to the Hague Convention.

The father argued that a parenting plan signed by the mother before they moved to Denmark established that the child's habitual residence remained in Ontario.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the parenting plan was unenforceable and signed under duress, and that the child's habitual residence was Denmark at the time of the wrongful removal.

The appellant wife appealed a motion judge's decision to enforce an accepted offer to settle an equalization payment for $35,000.

The appellant argued the motion judge erred by enforcing the settlement despite the respondent husband's failure to provide updated financial disclosure for her proposed valuation date.

The Divisional Court dismissed the appeal, finding the motion judge made no error in principle and correctly concluded the appellant had sufficient disclosure to appreciate the compromise she was making when she offered to settle.

The 15-year-old appellant commenced an application for child support against her father.

The motion judge ordered that the appellant must be represented by a litigation guardian, relying on the Rules of Civil Procedure.

On appeal, the Divisional Court set aside the order, finding that the Family Law Rules provide a complete code for the participation of children in family law proceedings.

The court held that under the Family Law Rules, a capable minor who is a party to a child support proceeding is a 'special party' who may be represented by a lawyer without the need for a litigation guardian.

The applicant mother sought an urgent stay of an interim access order made by the trial judge.

The trial judge, who had reserved judgment after a 20-day trial, unilaterally issued an order granting the respondent father unsupervised access over the Christmas holidays without notice, evidence, or a hearing.

The Divisional Court granted the stay, finding that the trial judge's order, while likely motivated by the lengthy delay in releasing the trial decision, constituted a profound violation of natural justice and was not in the best interests of the children.

The husband appealed a trial judgment ordering him to pay $12,000 in lump sum spousal support and to return property to his former wife following a very brief marriage.

The Divisional Court found the trial judge erred by failing to relate the support amount to the wife's actual needs and by ordering the return of property that was not claimed in the pleadings.

The appeal was allowed, the lump sum support was reduced to $4,800, and the order for the return of property was deleted.

The applicant sought to appeal or judicially review a family law arbitration award regarding spousal and child support in the Divisional Court.

The court held that the Arbitration Act provides a comprehensive code for reviewing arbitral decisions, precluding an application for judicial review to sidestep that regime.

Finding that the application to set aside the award under s. 46 of the Arbitration Act was brought in the wrong court, the Divisional Court exercised its discretion under s. 110(1) of the Courts of Justice Act to adjourn the matter to a judge of the Superior Court of Justice.

The applicant Children's Aid Society sought leave to appeal a costs order requiring it to pay the respondent stepfather's costs on a full recovery basis in a child protection and status review proceeding.

The motion judge granted leave to appeal, finding reason to believe the costs judge misapprehended facts regarding whether the Society withheld expert reports from the respondent, and erred in principle by treating a status review application as an extension of a protection application for costs purposes.

The father appealed a temporary order placing his two children in the care of their mother, with his access to be supervised at the discretion of the Children's Aid Society.

He argued the judge erred in considering dismissed assault charges and lacked jurisdiction to delegate access discretion to the Society.

The Divisional Court dismissed the appeal, finding no error in considering the factual context of the dismissed charges.

The Court also resolved conflicting lower court decisions, holding that sections 58 and 15 of the Child and Family Services Act give the court authority to order access at the discretion of the Society to allow for necessary day-to-day flexibility.