Family and Matrimonial Law - ODC

The moving party brought a motion for leave to appeal an order dated November 2, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered that no costs be awarded.

The appellant mother appealed a summary judgment order finding her two children in need of protection and making them Crown wards.

The motion judge had also denied access to the younger child and ordered supervised access for the older child.

On appeal, the mother argued there were genuine issues for trial, that she received ineffective assistance of counsel, and that the older child's wishes were misrepresented.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusions regarding the risk of harm, the mother's failure to obtain mental health treatment, and the best interests of the children.

The court also found no merit to the ineffective assistance of counsel claim.

The appellant father appealed a trial decision granting Crown wardship of his child with no access for the purpose of adoption.

The father sought joint custody with the child's paternal aunt, or sole custody for the aunt to adopt the child.

The father argued the trial judge provided inadequate reasons, misapprehended evidence regarding his drug addiction recovery, and failed to consider the least intrusive course of action.

The Divisional Court dismissed the appeal, finding the trial judge's reasons were adequate, his credibility findings and preference for the court-appointed expert's evidence were reasonable, and he properly considered and rejected the aunt's plan of care as insufficient to protect the child.

The moving parties brought motions for leave to appeal to the Divisional Court from orders arising from summary judgment motions, while also commencing appeals in the Court of Appeal.

Noting potential jurisdictional issues regarding whether the underlying orders were final or interlocutory, the Divisional Court adjourned the motions for leave to appeal and ordered the parties to provide supplementary written submissions on the jurisdictional question.

The appellant father appealed an order denying his application for periodic or lump sum dependant support for his minor daughter from her deceased mother's estate under the Succession Law Reform Act.

The mother had left life insurance proceeds in a bare trust for the daughter.

The application judge found the father's budget included expenses not attributable to the child and ordered funds paid into court to be administered by the Office of the Children's Lawyer.

The Divisional Court dismissed the appeal, finding no error in the application judge's consideration of the statutory factors, his assessment of the evidence, or his decision to utilize the Minor's Fund Program to manage the support payments.

The appellant appealed an order granting the respondent summary judgment, which dismissed his motion to change a previous child support order.

The appellant argued the previous order did not comply with the Child Support Guidelines.

The Divisional Court dismissed the appeal, finding that the original judge was entitled to make an order based on Minutes of Settlement even if it deviated from the Guidelines, provided reasonable arrangements were made.

To vary the order, the appellant had to show a material change in circumstances, which he failed to do.

The appellant mother appealed a summary judgment order finding her nine-year-old child in need of protection and granting Crown wardship with access.

The child had been apprehended five times due to the mother's serious mental health decompensations and lack of a viable safety plan.

The Divisional Court upheld the motions judge's finding that the predictable interruptions in care caused a risk of emotional harm to the child.

Finding no reviewable errors of fact or law, the court dismissed the appeal.

The respondent brought a motion for security for costs in an appeal of a family law order.

The appellant had amassed over $14,000 in unpaid costs awards across multiple proceedings and had been previously ordered not to take further steps until the costs were paid.

The court found the appeal lacked merit and that the appellant was wilfully refusing to pay costs despite claiming to have adequate assets.

The motion was granted, and the appellant was ordered to post $8,500 as security for costs before pursuing the appeal.

The appellant sought to appeal and sought leave to appeal an order of the Superior Court of Justice that had dismissed her motion for leave to appeal a costs order made in the Ontario Court of Justice regarding parental access.

The respondent requested that the Divisional Court dismiss the proceedings under Rule 2.1.01.

The court held that there is no right of appeal from an order denying leave to appeal.

The appeal and motion for leave to appeal were dismissed.

The appellant brought a motion to set aside an order of a single judge of the Divisional Court refusing leave to appeal two costs orders.

The appellant argued the leave motion should have been heard orally rather than in writing.

The court held that a single judge of the Divisional Court does not have inherent or statutory jurisdiction to set aside an order of another single judge of the same court.

The motion was adjourned to a panel of the Divisional Court, which has the statutory authority to set aside a motion order of a single judge.

The moving party sought leave to appeal an interlocutory order requiring him to pay temporary child support.

The motion judge had imputed his income at $40,000 and dismissed his cross-motion for spousal support because he failed to comply with court directions regarding filing materials.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions or good reason to doubt the correctness of the order, and concluding that the proposed appeal did not involve matters of such importance to warrant granting leave.

Following the granting of leave to appeal a temporary order, the court determined the issue of costs for the leave application.

The court ordered that the costs of the application for leave to appeal be left to the panel hearing the appeal.

The respondent husband sought leave to appeal an interim order requiring him to pay retroactive spousal support of $25,894 per month.

He argued there was good reason to doubt the correctness of the order because the motion judge failed to consider the tax implications of retroactive support, which might not be deductible.

The Divisional Court dismissed the motion for leave, finding that the interim nature of the order meant the trial judge retained discretion to adjust the support amount upwards or downwards to address any unfair tax consequences.

The moving party was successful in obtaining leave to appeal but unsuccessful in obtaining a stay of a temporary order regarding the exclusive use of a Florida condominium.

The court determined that the moving party was the more successful party overall, as the bulk of the preparation and argument focused on the leave issue.

Applying the factors in Rule 24(11) of the Family Law Rules, the court ordered the responding party to pay costs fixed at $5,500 inclusive.

The 15-year-old applicant sought leave to appeal several interlocutory orders made in her application for child support against her biological father.

The motion judge had ordered the appointment of a litigation guardian, denied interim child support and interim disbursements, and restrained the applicant from contacting the respondent's family.

The Divisional Court granted leave to appeal solely on the issue of whether a minor requires a litigation guardian to sue a parent for child support, finding good reason to doubt the correctness of the order and noting the issue's broad importance.

Leave to appeal was denied on all other grounds.

The appellant appealed a Small Claims Court decision dismissing his various claims against his former common law partner and her daughter for rent, parking, and other fees related to their occupation of his condominium.

The Divisional Court held that the Small Claims Court erred in finding that the Landlord and Tenant Board's prior eviction order extinguished the appellant's claim for occupation rent against the daughter for the period after the Board's order.

The appeal was allowed in part, awarding the appellant $23,000 in occupation rent against the daughter, while the dismissal of the remaining claims was upheld due to lack of jurisdiction and expired limitation periods.

The moving party sought leave to appeal a decision denying him leave to appeal an interlocutory order.

The Court of Appeal had ordered the appeal to be heard by a three-judge panel of the Divisional Court.

The Divisional Court panel held that it lacked jurisdiction to hear the matter as a panel appeal, noting that the appropriate route is to seek leave to appeal from a single judge of the Superior Court of Justice.

With the consent of the parties, the matter was converted to a motion for leave to appeal to be determined by one member of the panel sitting as a Superior Court judge.

The appellant wife appealed a trial decision regarding the equalization of net family properties.

The primary issue was whether the trial judge erred in law by failing to deduct a line of credit, secured by a collateral mortgage on the matrimonial home, from the respondent husband's date of marriage assets.

The Divisional Court held that under the Family Law Act and the test in Collier v. Torbar, a debt must be incurred to acquire, maintain, or improve the matrimonial home to be exempt from deduction.

The court adjusted the equalization payment to account for this error, as well as omitted assets including a vehicle and a generator, increasing the payment owed to the appellant to $96,462.41.

The appellant wife appealed a trial judgment regarding the division of net family property.

She argued the trial judge erred by excluding a $190,000 mortgage discharge from the husband's net family property and by limiting the unequal division of property under s. 5(6) of the Family Law Act to the difference in net family properties.

The Divisional Court dismissed the appeal, finding no error in the trial judge's conclusion that the pleadings did not support the inclusion of the mortgage discharge, and affirming that s. 5(6) only empowers the court to order an unequal division of the difference in value of net family property, not to rearrange family assets.

The appellant appealed a decision of the Social Benefits Tribunal which held she was entitled to receive fifty percent of the basic needs component of income support for her three children.

The tribunal found that the appellant shared primary care and control of the children equally with her ex-husband under a joint custody arrangement.

The Divisional Court found no error in the tribunal's conclusion that the children were dependent children only fifty percent of the time, and dismissed the appeal.