Family and Matrimonial Law - ODC

The moving party brought a motion for leave to appeal in part an order dated December 6, 2023.

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

The appellant appealed a motion judge's order requiring him to pay $1,200 per month in spousal support following his retirement.

He argued the motion judge erred by providing insufficient reasons, miscalculating incomes, allowing 'double dipping' from his previously equalized pension, and ordering support indefinitely.

The Divisional Court dismissed most grounds of appeal, finding the motion judge properly applied the exceptions to the rule against double dipping.

However, the court allowed the appeal in part to add a provision allowing either party to apply to vary the order when the respondent begins drawing her pension.

The appellant mother appealed a trial judge's order making her three children Crown wards, with no access for the purpose of adoption.

She argued the Children's Aid Society failed to provide a proper written Plan of Care, the trial judge failed to consider returning the children under supervision, and the trial judge erred in denying access.

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

The trial judge properly considered the Plans of Care, correctly concluded that a supervision order would not work, and reasonably found that access would not be beneficial and would impair adoption opportunities.

The appellants appealed a mistrial ordered by the trial judge in a civil fraud proceeding within a matrimonial context.

The trial judge declared a mistrial after thirteen days of evidence, citing the impact of extensive delay as the trial would have to continue on an installment basis.

The Divisional Court dismissed the appeal, finding the trial judge properly exercised her discretion and her decision was entitled to great deference.

The court provided directions for the new trial to minimize further delay, including preserving the evidence and rulings from the mistrial.

The mother appealed a trial judge's decision denying her request to relocate the child's primary residence and ordering that the child reside primarily with the father.

The Divisional Court found that the trial judge made material errors, including relying on a witness who did not testify and failing to consider the mother's evidence that she would remain in her current city if the relocation was denied.

The appeal was allowed and the matter remitted for a new hearing, with the child to remain with the father on an interim basis pending the new hearing.

The applicant sought costs of $61,486.11 on a full indemnity basis following the respondent's unsuccessful motion for a stay.

The respondent argued for no costs due to divided success.

The court found the applicant was entitled to costs as the successful party under rule 24(1) of the Family Law Rules, but declined to award full indemnity costs.

Finding the amount sought excessive for a non-complex motion, the court awarded costs fixed at $7,500 inclusive.

The Office of the Children's Lawyer appealed an interlocutory order requiring it to pay for a mother's psychiatric assessment in a custody dispute.

The Divisional Court allowed the appeal, finding that the motions judge lacked jurisdiction to order the disbursement of public funds for a private benefit absent specific legislative authority or a Charter breach involving an indigent litigant.

The order was set aside, and the father was ordered to pay for the assessment subject to reallocation at trial.

The applicant father appealed a motion judge's decision varying child support, arguing the judge erred by refusing to impute income to the respondent mother, refusing to make the support increase and extraordinary expenses retroactive, and denying his claims regarding an educational fund.

The father also sought to introduce new evidence of the mother's income tax return.

The Divisional Court admitted the new evidence but found it would not have changed the motion judge's decision.

The court held that the motion judge made no error in fact or law and applied the correct standard of review, dismissing the appeal and awarding costs to the respondent.

The mother moved to vary a child support order to increase support for two children, one of whom was a permanent Crown ward due to severe developmental disorders.

The motions judge found the child was still a 'child of the marriage' under the Divorce Act and ordered increased support.

The father appealed.

The Divisional Court allowed the appeal, holding that a permanent Crown ward is no longer in the charge of the parents and therefore does not qualify as a 'child of the marriage' for support purposes.

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 parents appealed a trial judge's order making their child a Crown ward without access.

The Divisional Court dismissed the appeal, finding ample evidence to support the trial judge's conclusion that the child would be at physical risk in the parents' care and that Crown wardship without access was in the child's best interests.

The court also upheld the trial judge's finding that access would impair the child's future opportunities for a permanent and stable placement through adoption.

The father and paternal grandparents appealed a trial decision granting Crown wardship of four children without access.

The children had been apprehended due to the parents' substance abuse and domestic violence, and the grandparents were unable to care for them due to their high needs.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the parents and grandparents were incapable of providing adequate care and that an access order would impair the children's opportunities for a permanent placement.

The appellant appealed a motion judge's order that reduced his spousal support obligations to $400 per month, arguing it should have been reduced to zero due to his unemployment and suspended driver's license.

The Divisional Court found the motion judge erred in ordering any support given the economic disparity and the appellant's unemployment.

The court reduced the ongoing support to zero as of November 2003, but declined to order retroactive repayment.

No costs were awarded.

The applicants moved to set aside two orders regarding their claimed beneficial interest in their son and daughter-in-law's matrimonial home.

The first order converted their application into an action, and the second ex parte order vested exclusive title in the daughter-in-law after the applicants failed to comply with the first order's filing deadlines.

The Divisional Court set aside the ex parte order under Rule 37.14(1)(a) because the applicants had indicated an intention to appeal, but affirmed the initial order as the motion to set it aside was not brought forthwith.

The applicant father in a custody and support proceeding moved for summary judgment to dismiss the respondent mother's counterclaim for an interest in property.

The motions judge adjourned the summary judgment motion pending the applicant's delivery of a financial statement and transcripts.

The applicant sought leave to appeal the adjournment to the Divisional Court.

The court granted leave to appeal, finding good reason to doubt the correctness of the adjournment and noting a conflicting decision regarding the adjournment of summary judgment motions for unrelated document production.

The petitioner father brought a motion to terminate his child support obligations for his adult son and to rescind arrears.

The respondent mother brought a cross-motion for a declaration of arrears and a proportionate share of extraordinary post-secondary expenses.

The court found that the son was in full-time attendance at an educational institution for specific periods and reinstated the support obligation for those times.

The court fixed the child support arrears at $17,024 and ordered the petitioner to pay $13,639.50 for his 75% share of the son's extraordinary post-secondary expenses.

The appellant appealed an order for retroactive child support in the amount of $42,917.88 to the Divisional Court, characterizing it as an interlocutory order.

The Divisional Court raised the issue of its own jurisdiction and determined that the order was final, as it finally determined the issue of retroactivity for the years 1998 to 2001.

Because the order was final and for a single payment of more than $25,000, the Divisional Court lacked jurisdiction under section 19 of the Courts of Justice Act.

The appeal was adjourned and transferred to the Court of Appeal for Ontario.

The father brought a motion to stay an order making his child a Crown ward with no access, pending his appeal.

The child had been apprehended multiple times and placed in foster care.

The court dismissed the motion to stay the Crown wardship, finding it was not in the child's best interests.

However, the court granted a stay of the no-access order, allowing the father supervised access pending the appeal, as he posed no risk and temporary access would not impair future placement opportunities.

The self-represented moving party sought an extension of time and leave to appeal an interlocutory child support order to the Divisional Court.

The court noted that the moving party had previously attempted to appeal to the Court of Appeal and was advised he was in the wrong court.

Finding no explanation for the delay in seeking leave within the required seven-day period under Rule 62.02(2), the court dismissed the application to extend time and quashed the application for leave to appeal.

The appellant appealed a decision appointing the deceased's spouse and another individual as estate trustees.

The Divisional Court held that under s. 6(8) of the Family Law Act, a surviving spouse who elects to take their share under the Act rather than the will cannot act as an executor, as the will is interpreted as if they had predeceased the testator.

Furthermore, due to conflict between the parties, the court found it preferable to appoint an independent executor.

The appeal was allowed and the judgment varied to appoint an independent estate trustee.