Family and Matrimonial Law - ODC

The appellant appealed an order directing the partition and sale of the parties' matrimonial home.

The appellant also brought a preliminary motion to introduce fresh evidence regarding his medical condition and the difficulty of finding alternative accommodation.

The Divisional Court dismissed the motion for fresh evidence, finding it could have been obtained with due diligence prior to the original hearing.

The court also dismissed the appeal, concluding the motion judge made no palpable and overriding error in finding that partition and sale would not prejudice the appellant's substantive rights and that the respondent's motion was not frivolous or vexatious.

The moving party brought a motion for leave to appeal an earlier order of Di Luca J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $10,000 to the responding party.

The moving party brought a motion for leave to appeal an order and requested a stay.

The Divisional Court granted leave to appeal on the question of whether the motions judge erred in principle by relying on the responding party's evidence from an adjourned cross-motion without allowing the moving party an opportunity to respond.

The request for a stay was refused, and costs were reserved to the panel hearing the appeal.

The self-represented appellant brought a motion to a panel of the Divisional Court under s. 21(5) of the Courts of Justice Act to set aside an order of a single judge.

The single judge had dismissed her motion to extend the time to appeal a finding that her family law claims were statute-barred.

The panel found no error in the single judge's conclusion that the date of separation was res judicata and that the limitation period under s. 7(3) of the Family Law Act had expired.

The motion was dismissed with costs awarded to the respondent.

The moving party brought a motion for leave to appeal an earlier order.

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

The moving party brought a motion for leave to appeal an order dated April 19, 2021.

The Divisional Court dismissed the motion for leave to appeal without requiring responding materials.

No costs were ordered.

The appellant father appealed a final custody and access order that granted joint custody and gradually increased the respondent mother's access to their child.

The appellant also brought a motion to introduce fresh evidence regarding the child's recent regressive behaviour.

The Divisional Court dismissed the motion for fresh evidence, finding it did not meet the Palmer test and consisted largely of uncorroborated hearsay.

The court also dismissed the appeal, concluding that the trial judge made no palpable and overriding errors in assessing the child's best interests, the mother's history of substance abuse, and the parties' ability to communicate.

The applicant brought an application for judicial review seeking to overturn Crown wardship and adoption decisions regarding two children, and to obtain pictures and send presents to them.

The court noted that the wardship and adoption decisions were finalized years ago and the recent Board decision only addressed whether the Children's Aid Society provided reasons for denying pictures.

The court directed the Registrar to give notice to the applicant that it is considering dismissing the application as frivolous, vexatious, or an abuse of process under Rule 2.1.01, and gave the applicant 15 days to respond.

The appeal was dismissed as abandoned after the father's counsel was removed from the record due to loss of contact following his release from jail.

The father failed to inquire about the appeal or provide a parenting plan.

The Divisional Court dismissed the appeal as abandoned and alternatively on the merits, noting that further delay would prejudice the child by delaying a potential adoption.

The Children's Aid Society of Ottawa brought a motion to set aside a legal ruling made by a motion judge who had dismissed its motion for summary judgment.

The underlying appeal had already been heard and dismissed, rendering the current motion moot.

The Divisional Court declined to exercise its discretion to hear the moot case, noting the lack of an adversarial context, judicial economy concerns, and the fact that the applicant was seeking a broad declaration rather than overturning an order.

The motion was dismissed.

The applicant children's aid society sought judicial review of a decision by the Child and Family Services Review Board.

The Board had overturned the society's refusal of an adoption plan proposed by the children's paternal aunt and uncle, who resided in another province, and ordered the children placed with them primarily to preserve their native cultural identity.

The society argued the decision was unreasonable as it ignored the children's strong attachment to their foster parents of three and a half years and the oldest child's explicit wish to remain.

The Divisional Court agreed, finding the Board made palpable and overriding errors by giving undue weight to the cultural heritage factor while ignoring the children's overall best interests, stability, and the negative assessments of the proposed adoptive home.

The court quashed the Board's decision and reinstated the society's approval of the foster parents' adoption plan.

The appellant father appealed a trial order requiring him to pay $29,000 in child support arrears, $1,750 for orthodontic expenses, and $5,000 in costs to the respondent mother.

The appellant argued he had an inability to pay and that the children were not in financial need.

The Divisional Court upheld the trial judge's decision to impute income to the appellant and enforce the original consent order, noting that child support is based on the payor's means.

The appeal was dismissed in almost all respects, save for a correction that interest on the arrears should be calculated as simple rather than compound interest.

The respondent was awarded $5,000 in costs for the appeal.

The father appealed an order finding that the Ontario court had jurisdiction to hear the mother's application for child support.

The parents previously lived in France, where a French court made a custody, access, and child support order that contemplated the mother's relocation to Canada.

The mother subsequently moved to Ontario with the children and applied to change the child support and custody provisions.

The Divisional Court dismissed the appeal, holding that because the children are ordinarily resident in Ontario and have an independent legal right to support under the Family Law Act, the child support claim should be determined on its merits in Ontario.

The applicant mother moved for leave to appeal an interim order granting custody of the parties' 11-year-old child to the respondent father.

The mother argued the motion judge erred by failing to maintain the status quo.

The Divisional Court found no error in principle, noting the motion judge properly considered the child's wishes and the best interests of the child under the Children's Law Reform Act.

The court held there was no conflicting decision and no good reason to doubt the correctness of the order.

Leave to appeal was refused.

The applicants, former foster parents, brought a motion to admit several affidavits on their judicial review application.

The respondents filed responding and reply affidavits.

The Divisional Court noted that the indiscriminate filing of affidavits likely offended the rule in Keeprite, but concluded it was not feasible to parse the inextricably woven evidence paragraph by paragraph.

The court admitted all affidavits, except for a portion of one affidavit that the applicants agreed to strike, noting it would separate the wheat from the chaff during the hearing.

The appellant municipality appealed a costs order made against it after it sought to enforce a support assignment through the Family Responsibility Office.

The support obligation had previously ceased, but the assignor had falsely certified it was active.

The Divisional Court found that while the lower court had jurisdiction to award costs against the appellant because it became a party by filing a Notice of Financial Interest, the costs order was unjustified on the merits.

The appellant had no reason to doubt the assignment's validity and its failure to attend the motion was not unreasonable.

The appeal was allowed and the costs order against the appellant was set aside.

The husband sought leave to appeal an order that adjourned a trial, prohibited him from seeking further disclosure, required payment of child support arrears before allowing a motion to vary support, and ordered $15,000 in costs thrown away.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order.

The motion judge had improperly relied on the continuing record without notice to the parties, prohibited the exercise of a statutory right to seek a variation of support, and awarded substantial costs without evidence.

The moving party sought leave to appeal an order that adjourned his trial, prohibited him from seeking further disclosure, required payment of child support arrears before allowing a motion to vary support, and ordered $15,000 in costs thrown away.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order.

Specifically, the motion judge improperly relied on unsworn material from the Continuing Record, prohibited a statutory right to move for varied support, awarded substantial indemnity costs without evidence, and disqualified an expert witness without assessing competence.

The order was stayed pending the appeal.

The appellant husband appealed a spousal support order of $1,800 monthly for ten years, arguing the respondent wife had waived support in their marriage contract.

The motions judge found the waiver resulted in unconscionable circumstances under s. 33(4) of the Family Law Act, as the husband had required the wife to quit her job as an exotic dancer, leaving her in poverty while he maintained a wealthy lifestyle.

The Divisional Court dismissed the appeal, finding the motions judge properly considered the wife's lack of employment prospects, her immigration status, and the unconscionable result of the contract, and did not err in ordering ten years of support.

The appellant wife appealed a trial judgment fixing time-limited spousal support at $550 per month.

The wife, who was qualified in Early Childhood Education, refused to seek employment in her field, instead pursuing a lengthy and unrealistic educational program to become a teacher.

The Divisional Court dismissed the appeal, finding no error in principle in the time limit, as the husband should not bear the costs of an unrealistic educational program.

The quantum was also upheld, as the parties were in similar after-tax positions and the wife had exclusive possession of the matrimonial home.