Family and Matrimonial Law - ODC

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 an order that required him to pay outstanding costs awards, failing which his motion to change child support would be struck.

The Divisional Court determined that the order was interlocutory, not final, because the underlying motion to change would have continued if the costs were paid.

As an interlocutory order requires leave to appeal, the court granted the appellant an extension of time to bring a motion for leave to appeal, finding no prejudice to the respondent and noting that both parties initially believed the order was final.

The appellant father moved for a stay pending appeal of a final parenting order that granted primary residence and sole decision-making authority to the respondent mother.

The mother opposed the stay and moved for security for costs of the trial and appeal.

The court dismissed the motion for a stay, finding that the appeal grounds were weak and a stay would not be in the child's best interests given the trial judge's findings of severe coercive control and family violence by the father.

The court granted the mother's motion for security for costs of the appeal in the amount of $30,000 due to the father's unpaid costs orders and the weakness of the appeal, but dismissed the request for security for trial costs as they had not yet been determined.

The appellant sought to appeal a Superior Court decision denying him leave to appeal a family law arbitration award.

The respondent brought a motion to quash the appeal, arguing there is no right to appeal a denial of leave.

The Divisional Court reviewed conflicting jurisprudence and followed the general rule that an order refusing leave to appeal is not appealable, except in narrow circumstances where a judge mistakenly declines jurisdiction.

As the appellant did not allege the judge declined jurisdiction, the notice of appeal was quashed.

The Children's Aid Society appealed a costs order of $12,482.49 made against it on a motion for state funding brought by the respondent mother.

The motion judge had found the Society acted unreasonably in opposing the motion and failing to accept an offer to settle.

The Divisional Court granted the appeal and set aside the costs award, finding that while the Society did oppose the motion on the merits, taking a position on the merits of an appeal is consistent with its statutory mandate and does not amount to unreasonable conduct justifying a costs award against a child protection agency.

The appellant father appealed a trial decision regarding retroactive child support and costs.

The trial judge had awarded retroactive support from the date the Motion to Change was filed, using a straight set-off calculation for one child each.

The Divisional Court upheld the start date but found a legal error in the calculation for the period of shared custody, correcting it to use the table amounts for two children.

The appeal was allowed in part to increase the retroactive support award, but dismissed regarding the costs award and the refusal to award support prior to the motion date.

The appellant appealed a final order regarding retroactive child support and section 7 expenses.

The Divisional Court upheld the motion judge's findings that the parties' daughter remained a 'child of the marriage' while attending college and that the respondent was entitled to retroactive child support.

However, the court found the motion judge failed to adequately analyze the section 7 expenses under the Child Support Guidelines.

The appeal was allowed in part, and the issue of section 7 arrears was remitted to the motion judge for reconsideration.

The appellant mother brought a motion for a stay pending appeal of an interlocutory order that permitted the respondent father to continue in-person access to their immunocompromised child during the COVID-19 pandemic.

The mother also sought the appointment of counsel for the child.

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

While finding the appeal raised a serious issue, the court concluded the child would not suffer irreparable harm due to the strict safety conditions imposed by the motion judge, and the balance of convenience did not favour a stay.

The mother's motion for a stay and appointment of counsel was dismissed, as was the father's motion to admit fresh evidence.

A case management endorsement setting out procedural directions for an upcoming electronic hearing of a motion for leave to appeal and appeal in a child protection matter.

The court directed that the motion for leave and the appeal be heard together via video conference and provided guidelines for the electronic filing of materials.

The moving party, a lawyer representing himself, sought leave to appeal a final family law order regarding supervised access to the Divisional Court.

The court issued a notice under Rule 2.1.01 of the Rules of Civil Procedure, considering dismissing the proceeding as frivolous, vexatious, or an abuse of process because it was brought in the wrong court.

The moving party conceded he was in the wrong court but requested a transfer to the Court of Appeal under s. 110 of the Courts of Justice Act.

The Divisional Court dismissed the motion, finding it clearly had no merit in the current court and that the moving party's materials displayed hallmarks of vexatious proceedings, making a transfer inappropriate.

The appellant appealed a trial decision ordering him to pay child support based on an imputed income of $75,000 and dismissing his claim for equalization of net family property.

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

The trial judge's decision to impute income was justified by the appellant's deliberate failure to make financial disclosure, intentional underemployment, and manipulation of documents.

The dismissal of the equalization claim was upheld based on the trial judge's finding that the parties had already settled property division in 2011.

The self-represented appellant appealed a case conference judge's dismissal of his Form 14 Notice of Motion, which sought to stay and vary a final order regarding child and spousal support.

The Divisional Court dismissed the appeal, finding that the appellant failed to use the proper procedure (a Motion to Change) and that the Family Court had no jurisdiction to stay the final order in the absence of a proper motion or appeal.

The court noted the appellant's failure to provide an adequate record and found no error in the lower court's decision.

The appellant husband appealed a final spousal support order, arguing a lack of procedural fairness.

The Divisional Court found that the lower court judge, who had presided over a settlement conference, erred by deciding the substantive issue without clear consent from both parties.

Furthermore, the unrepresented husband was prejudiced by the late service of the respondent's factum and affidavit on the morning of the hearing.

The appeal was allowed, the support order was set aside, and the matter was remitted to the Family Court for a new hearing before a different judge.

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 appellant mother appealed the dismissal of her application for child support under the Divorce Act.

The hearing judge had dismissed the application on the basis that the Superior Court of Justice lacked jurisdiction because there was a prior child support order made under the Family Law Act in the Ontario Court of Justice.

The Divisional Court allowed the appeal, holding that an application for corollary relief under the Divorce Act is a stand-alone application that supersedes a prior provincial order, and the Superior Court has jurisdiction to hear it.

The appellant appealed a trial judge's decision apportioning the proceeds of sale of a home formerly occupied by the parties.

The parties, who lived together but were not married, had an agreement to share expenses and divide the proceeds of the home's sale equally after reimbursing the appellant's down payment.

The appellant argued the trial judge erred in granting the respondent an allowance akin to occupation rent, as they were not joint owners or spouses under the Family Law Act.

The Divisional Court dismissed the appeal, finding that the trial judge appropriately considered all circumstances, including the appellant's sole occupation of the property and the equitable claims of unjust enrichment and constructive trust, to arrive at an equitable division of the proceeds.

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 Children's Aid Society applied for a prohibition or stay of a hearing before the Child and Family Services Board regarding the removal of a special needs Crown ward from his foster parents.

The Society argued the foster parents were not entitled to notice because the child had not lived with them continuously for two years due to a temporary treatment placement.

The court found the temporary placement did not interrupt the continuous care period and that the foster parents were entitled to notice.

The court dismissed the Society's application for judicial review as premature and ordered the child to remain with the foster parents pending the Board's hearing.

The applicants, foster parents, sought $30,000 in costs against the respondent Children's Aid Society following an emergency judicial review where the court ordered the children to remain in the applicants' care.

The court noted that while Children's Aid Societies do not have immunity from costs, costs should be dealt with justly.

Although the court disagreed with the Society's actions in attempting to remove the children right before Christmas, it found no bad faith or unreasonable conduct, as the Society was acting to protect a child.

The request for costs was dismissed.