Family and Matrimonial Law - ONCA

Appeal of a family law trial decision involving a short marriage with a religious ceremony in July 2017 and civil ceremony in April 2019.

The trial judge dismissed the appellant's claims for a resulting or constructive trust in the matrimonial home and for equalization of net family property, finding the appellant not credible due to inconsistent financial disclosure, use of false names, doctored bank statements, and manipulative conduct.

The trial judge imputed annual income of $86,553 to the appellant for child support purposes, awarded the respondent a $20,000 Mehr payment under the marriage contract, and ordered costs of $85,000.

The Court of Appeal dismissed all grounds of appeal, finding no palpable and overriding errors, no denial of natural justice, no bias, and no basis to interfere with the costs award.

The respondent mother sought to stay the Court of Appeal's order requiring the return of a five-year-old child to the United Kingdom pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, pending her application for leave to appeal to the Supreme Court of Canada.

The father had successfully appealed a Superior Court decision that dismissed his application for the child's return, on the basis that the father had consented to or acquiesced in the child's retention in Canada.

The Court of Appeal found that the application judge erred in conflating consent to relocation with consent to retention.

The motion judge dismissed the mother's stay motion, finding no serious issue to be tried, no irreparable harm, and that the balance of convenience favoured the child's return to the jurisdiction of habitual residence.

A wrongfully retained child was ordered returned to her country of origin after Canada granted her refugee status.

The Court of Appeal for Ontario allowed the appeal, finding that the application judge erred in failing to apply the rebuttable presumption against the return of a refugee child and in dismissing the child's objection to return.

The court held that when a child has been recognized as a Convention refugee by the Immigration and Refugee Board, a rebuttable presumption arises that there is a risk of persecution on return.

The application judge improperly questioned the refugee determination process and reweighed evidence without oral testimony or cross-examination.

Additionally, the child's clear and repeated objection to return, based on fear of violence by the father, was not given proper weight.

The matter was remitted to the Superior Court for determination of parenting and decision-making authority under section 23 of the Children's Law Reform Act.

The appellant, convicted of domestic assault and breaches of orders, appealed the non-communication order prohibiting contact with his child, who was present during the assault.

The Court of Appeal for Ontario dismissed the appeal, upholding the non-communication orders during incarceration and probation.

The court found the orders warranted due to the traumatic circumstances and prior family court orders, clarifying that any future contact with the child would be determined by family court or the Children's Aid Society based on the child's best interests.

This appeal addressed whether pension payments divided at source for family law purposes can continue to a non-member spouse's estate after their death for the balance of the retired member spouse's life.

The motion judge had ruled this was precluded by the Pension Benefits Act (PBA).

The Court of Appeal disagreed, finding that nothing in the PBA, Family Law Act (FLA), or the Family Law Matters Regulation (O. Reg. 287/11) prevents such an arrangement.

The court emphasized that the "Family Law Matters" sections of the PBA (ss. 67.1-67.9) and the Regulation govern these issues, not general pension provisions.

The appeal was allowed, clarifying that such continuation is permissible if provided for by agreement, court order, or arbitration award.

The appellant appealed a decision dismissing his application for retroactive spousal support, unjust enrichment, and a constructive trust in twelve properties.

The appellant also sought a declaration of a joint family venture and return of shares in an Indigenous staffing company.

The Court of Appeal upheld the lower court's decision, finding that the appellant failed to establish a spousal relationship under the Family Law Act, failed to prove unjust enrichment due to insufficient evidence that he was not paid for work performed, and failed to establish a joint family venture due to lack of economic integration.

The court also rejected the appellant's allegation that the application judge improperly relied on the respondent's written submissions.

The applicant sought to set aside a decision denying him an extension of time to seek leave to appeal a Divisional Court decision from 2010, which had substantially denied his appeal from support, equalization payments, and associated costs orders made after a Superior Court trial in 2008.

The applicant also sought additional relief including extensions to file leaves to appeal and notices of appeal relating to interim support orders, as well as orders for production and use of transcripts.

The Court of Appeal dismissed the motion, finding no basis to interfere with the lower court's decision and clarifying that the applicant's proper remedy for changed financial circumstances lies in an application for variation or termination of support obligations.

Appeal from a motion judge's order permitting the respondent to take the parties' two children on a trip to Mexico during March break without the appellant's consent.

The motion judge found the appellant was acting unreasonably in withholding consent and made an order allowing the respondent to remove the children from Canada for up to 14 days without the appellant's consent or a court order.

The appellant appealed, arguing the motion judge was biased for not imposing equal restrictions on both parents despite their equal custody arrangement.

The Court of Appeal dismissed the appeal, finding the motion judge's order was reasonable and not biased, as it was tailored to address the specific issue of the appellant's unreasonable refusal to consent to travel.

The appellant father appealed a trial judge's decision permitting the respondent mother to relocate with their three children from Lion's Head, Ontario to a location within Bruce/Grey counties closer to her employment.

The father argued the trial judge misapprehended evidence, failed to give sufficient weight to the Views of the Child Report, and made a decision contrary to the children's best interests.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error and affirming that custody and mobility decisions are afforded great deference on appeal.

The appellant appealed from two orders arising from estate proceedings following her former spouse's death.

The appellant sought to advance claims against the estate for arrears in spousal support, ongoing spousal support, return of property, and unjust enrichment.

The lower court had imposed a requirement that the appellant obtain leave of the court before advancing any claims, based on a prior order made in bankruptcy proceedings.

The Court of Appeal found that the lower court erred in extending the reach of the bankruptcy order beyond the bankruptcy proceedings and in imposing a vexatious litigant requirement without a formal declaration.

The court allowed the appeal in part, set aside the March 15, 2017 order, and directed the estate trustee to bring a motion for directions to establish a timetable for administration of the estate and determination of the appellant's claims.

The appellant appealed a final order from the Superior Court of Justice (Family Court) that determined issues of property division and child and spousal support.

The appellant raised five grounds of appeal: lack of jurisdiction to grant summary judgment when a divorce claim was present, improper treatment of the matrimonial home, unfair division of household contents, mathematical errors in calculating net family property, and allegations of judicial bias.

The Court of Appeal dismissed all grounds of appeal, finding that the motion judge properly severed the divorce claim under the Family Law Rules, made no error regarding the matrimonial home, fairly divided the household contents, and appropriately addressed mathematical errors through a subsequent motion.

The court rejected unsubstantiated allegations of judicial bias.

The appellant appealed his conviction for attempted murder and attempt to overcome resistance by suffocation against his wife, and his sentence of 11 years in custody.

The sole issue on appeal concerned the propriety of a sentencing order under section 743.21 of the Criminal Code that imposed an absolute prohibition on contact with his children during the custodial portion of his sentence.

The appellant argued the sentencing judge erred in principle by failing to recognize the division of responsibility between criminal sentencing and family law regimes, and that the family court or Children's Aid Society should determine the nature of his relationship with his children.

The Court of Appeal dismissed the appeal, finding no error in principle and that the sentence was fit.

The appellant, the mother of Monica Gaumont, appealed a judgment appointing the Public Guardian and Trustee as guardian of Monica's property and personal care.

Monica, age 30, has a form of epilepsy with progressive seizures that have caused cognitive regression.

The application judge found Monica lacked capacity and appointed the PGT as guardian, allowing the appellant to reapply upon important changes in circumstances.

The Court of Appeal dismissed the appeal on all grounds, finding no procedural unfairness, no error regarding the capacity finding, and no merit to arguments concerning a power of attorney or alternative guardians.

The appellant father appealed a custody and access order from the Superior Court of Justice concerning his three sons.

The motions judge granted summary judgment in favour of the respondent mother, awarding her sole custody of two of the three children and ordering that the father's access and communication with the children be at the children's discretion.

The father challenged the appropriateness of summary judgment, the weight given to the custody assessment, the best interests analysis, and alleged Charter violations.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's decision to proceed by summary judgment, his consideration of the evidence, his analysis of the children's best interests, and his costs award.

Appeal of a motion to change order concerning spousal support and a contempt motion.

The trial judge terminated spousal support for approximately two years and awarded support below the Spousal Support Advisory Guidelines (SSAGs) range, relying on an unimplemented settlement agreement reached during trial.

The trial judge also dismissed a contempt motion regarding the cancellation of a required life insurance policy.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by departing from the SSAGs without adequate justification and by using the negotiated settlement as a reference point.

The court also found the respondent in contempt for deliberately cancelling the life insurance policy without consent or court order.

The mother appealed a trial judge's decision awarding sole custody of two children to their father.

The children had resided with the father since 2010 when the Children's Aid Society placed them with him, and the mother had previously agreed to this arrangement in 2012.

At trial, the Office of the Children's Lawyer supported continued residence with the father.

The mother sought to introduce hearsay evidence of statements made by the children and a surreptitious recording, arguing the trial judge erred in excluding this evidence and in awarding sole custody based on the father's alleged inattention to medical needs.

The Court of Appeal upheld the trial judge's decision, finding no error in the exclusion of the hearsay evidence or the recording, and finding the trial judge's custody determination was thorough, sensitive, and owed deference.

The appeal was dismissed and leave to appeal costs was refused.

Appeal from a trial judge's decision granting sole custody of a child to the respondent mother and permitting relocation from Toronto to Nova Scotia.

The appellant father challenged the custody award, relocation decision, access schedule, and costs award.

The Court of Appeal upheld the trial judge's decisions on custody and relocation, finding they were supported by the record and within the trial judge's discretion.

The court modified the access schedule by removing a four-hour restriction on overnight visits with the child's grandparents, finding it inconsistent with the trial judge's own findings regarding the child's relationship with the paternal grandparents.

The costs award was upheld as within the trial judge's discretion.

The appellant husband appealed a trial judge's decision regarding the ownership of two Mexican condominiums purchased with funds contributed by both spouses.

The appellant claimed he held title to the properties through company shares on resulting trust for the wife in respect of half their value, seeking this arrangement because the properties had declined in value since separation, which would benefit him in the equalization calculation.

The trial judge rejected the resulting trust claim, finding the presumption had been rebutted based on all the evidence.

The Court of Appeal dismissed the appeal and awarded costs to the respondent.

Appeal from trial judgment in matrimonial proceedings concerning ownership of property.

The trial judge found that the appellant's 50% interest in Knapton Farms Ltd. (a corporation holding farm property) and 100% interest in lot 8 (adjoining land) were beneficially owned by the respondent through resulting trust.

The Court of Appeal allowed the appeal in part, finding that the trial judge correctly applied resulting trust principles to the Knapton shares but erred regarding lot 8.

The court held that the initial 1994 transfer of lot 8 to the parties as joint owners created a presumption of joint beneficial ownership under the Family Law Act, which the respondent failed to rebut.

However, the court upheld the resulting trust finding regarding the 1996 transfer of the respondent's half-interest to the appellant.

The court also corrected the valuation of farm real estate and addressed equalization, occupation rent, and pre-judgment interest issues.

The appellant husband appealed the trial judge's decision to set aside a separation agreement on the grounds of material misrepresentation regarding the value of his company, Renegade Capital Corporation, at the date of marriage.

The husband had valued Renegade at $7.6 million using book value, when the trial judge found it was worth nil based on market value analysis.

The trial judge also recalculated the equalization payment and awarded retroactive child support.

The Court of Appeal upheld the trial judge's decision, finding that the husband had breached his disclosure obligations and materially misrepresented his assets.

The court affirmed that the duty to disclose includes the duty to fairly value assets, and that the onus is on the party disclosing to establish the recipient's actual knowledge of any falsehood.