Family and Matrimonial Law - ONCA

This costs endorsement addresses the allocation of costs following a family law appeal in which the appellant, Eleanor Dawn Hendriks, was substantially successful.

The Court of Appeal for Ontario awarded her costs for both the appeal and the underlying motion, reversing the motion judge’s previous order that required her to pay costs to the respondent.

The court found that the appellant was the more successful party and that the respondent did not meet the burden to show his settlement offers were more favourable.

The court also found that the appellant, as a self-represented litigant, was not unreasonable in her conduct.

The Court of Appeal for Ontario considered a motion by the moving party, M.H., to adjourn and stay the appeal of O.K. until O.K. paid support arrears and security for costs.

The court found that O.K. was required to pay support for January to March 2025 and had not done so, and that he had no assets in Ontario and a history of failing to meet support obligations.

The court ordered the appeal stayed until O.K. paid $24,396 in support arrears and $35,000 as security for costs, with the appeal to be administratively dismissed if payment was not made by June 6, 2025.

The court also awarded M.H. $3,200 in costs for the motion.

The mother appealed an order denying her permission to relocate her three-year-old daughter from Toronto to Ennis, Ireland.

The Court of Appeal found that the trial judge made material errors, seriously misapprehended evidence, and committed legal errors in his "best interests of the child" analysis under the Divorce Act.

Specifically, the trial judge erred in assessing family violence allegations, making unfounded assumptions about the mother's family's attitude towards the child's biracial heritage, and concluding that the mother manipulated the court system.

The trial judge also erred by re-characterizing the relocation case as a "support case" and misapplying the burden of proof.

The appeal was allowed, the trial decision set aside, and a new trial ordered on an expedited basis, with costs awarded to the mother.

The Court of Appeal heard two appeals: a dependant support appeal and a costs appeal.

The dependant support appeal concerned whether the deceased had a "settled intention" to treat a non-biological child as his own for the purpose of dependant support under the Succession Law Reform Act.

The application judge dismissed the dependant support claim, partly due to the mother's failure to disclose the child's true parentage.

The costs appeal challenged a substantial indemnity costs award against the mother and grandmother, which the application judge based on a finding of a "false narrative." The Court of Appeal dismissed the dependant support appeal, upholding the application judge's finding that the deceased's knowledge of parentage was a relevant factor in determining "settled intention" given the short relationship.

However, the Court allowed the costs appeal, finding no basis for the "false narrative" conclusion or egregious conduct, and substituted the costs award with partial indemnity costs.

The appellant father, a self-represented family law lawyer, brought a motion to extend the time for perfecting his appeal concerning child support arrears, inter-party debt, and parenting time.

The respondent mother opposed the motion.

The court dismissed the motion, finding the appellant's delay inordinate and inadequately explained, his litigation conduct indicative of delay tactics, and the merits of his appeal very weak.

The court also ordered the appellant to pay costs to the respondent.

The appellant appealed from the parenting schedule established by the trial judge following an 11-day trial.

The trial judge had ordered that the respondent have greater contact with their four-year-old daughter, including extended overnight visits during weekends and holidays.

The appellant contended that the trial judge erred in failing to follow the expert assessor's recommendations for a gradual increase in overnight and holiday access, and that the child was distressed by the current schedule.

The appellant also sought to introduce fresh evidence from a clinical psychologist.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error or error in principle.

The trial judge had properly exercised his discretion in crafting a reasonable parenting schedule that reflected the best interests of the child while accounting for the toxic relationship between the parties.

The appellant appealed a trial judgment settling the division of matrimonial property following a marriage breakdown.

The central issue was whether the respondent was a beneficial owner of the matrimonial home held solely in the appellant's name.

The trial judge found the respondent was a beneficial owner based on the parties' pattern of joint financial ventures in real estate.

The appellant argued the trial judge erred in finding beneficial ownership, in denying an adjournment request, in failing to assist her as a self-represented litigant, and in refusing an unequal division of net family property.

The appeal was dismissed on all grounds.

The appellant appealed the dismissal of his motion seeking an order that his brother disclose information about their late father's assets and account for property and finances under a power of attorney.

The motion judge dismissed the application, finding the appellant lacked standing.

The Court of Appeal found the motion judge erred on the standing issue but upheld the dismissal on discretionary grounds.

The court found the parents had executed written instructions prohibiting disclosure to the appellant, and there was no evidence of improper conduct by the brother acting as attorney for property.

Two consolidated appeals concerning guardianship and personal care arrangements for an elderly woman with Alzheimer's disease.

The applications judge appointed one daughter as guardian of personal care and a trust company as guardian of property, with compensation awarded to the daughter for past care services.

A subsequent motion to vary the guardianship order was heard based on changed circumstances.

The appellants challenged the guardianship appointments, the compensation award, and alleged judicial bias and misconduct by the section 3 counsel.

The Court of Appeal dismissed all appeals, finding no error in the applications judge's decisions and rejecting allegations of bias and misconduct.

Appeal from a motion judge's order determining child support obligations.

The appellant sought to reduce child support based on reported lower income, but the motion judge found the appellant had engaged in deliberate non-disclosure and evasion of financial disclosure obligations, hiding income through a corporation.

The motion judge attributed significantly higher income to the appellant and ordered child support payments over twelve months rather than the ten months specified in a prior consent order.

On appeal, the court found one palpable and overriding error regarding double-counting of repaid corporate loans but otherwise upheld the motion judge's decision.

The court reduced the attributed income and corresponding child support amounts but maintained the twelve-month payment structure.

Appeal from a family law trial decision concerning equalization of net family property, child support, spousal support, and costs.

The trial judge found the appellant had concealed substantial income through an improper insurance scheme and made extensive findings against his credibility.

The appellant, self-represented on appeal, challenged multiple aspects of the trial decision including the trial judge's treatment of his medical conditions, the respondent's asset disclosure, the award of child support, denial of occupation rent, and the costs award.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's findings of fact or exercise of discretion.

The appellants, the biological parents of a child, appealed a Superior Court decision that upheld a trial judge's order making the child a Crown ward with no access.

The Court of Appeal dismissed the appeal, finding no procedural unfairness, bias, or palpable and overriding error in the lower courts' decisions.

The Court emphasized the child's need for permanency and stability after being in the care of the respondent for over five years, concluding that the child should be placed for adoption without further delay.

The appellant appealed an order retroactively reducing the respondent's child and spousal support obligations.

The Court of Appeal upheld the motion judge's finding that the respondent's job loss and subsequent re-employment at a lower salary constituted a material change in circumstances.

However, the Court allowed the appeal in part, finding that the motion judge erred by retroactively varying support without conducting the proper legal analysis under the D.B.S. framework.

The matter was remitted to the motion judge to determine whether retroactive change is warranted, the date of retroactivity, and the quantum of support.

The appellant appealed an order setting aside a 2005 amending agreement to a separation agreement, declaring the respondent the sole owner of a property, and ordering prospective spousal support.

The respondent cross-appealed on issues including retroactive support, pre-judgment interest, and costs.

The Court of Appeal upheld the applications judge's decision to set aside the agreement due to the appellant's significant financial non-disclosure and unconscionability.

The appeal was dismissed in its entirety.

The cross-appeal was allowed only to award pre-judgment interest on the retroactive child and spousal support order.

The appellant father appealed a trial decision regarding custody, child and spousal support, and equalization of net family property.

He argued the trial judge erred in designating the mother's home as the primary residence and ordering unequal access despite a joint custody order, and challenged the support and equalization orders.

The Court of Appeal dismissed the appeal, finding the trial judge's decisions on primary residence, access, imputed income, and equalization were fully supported by the record and sensible in a high-conflict case.

The appellant appealed a trial judgment regarding the equalization of net family property and the accounting of debits and credits.

The Court of Appeal found no error in the trial judge's conclusion that the respondent owed an equalization payment of $9,764.30.

The court was also satisfied that the appellant received a fair trial and found no error in the trial judge's costs award.

The appeal was dismissed with costs.

On a family law appeal arising from marriage breakdown, the court upheld the refusal of an adjournment and rejected an allegation of reasonable apprehension of bias against the trial judge.

It also upheld the setting aside of a domestic contract under s. 56(4)(b) of the Family Law Act where the respondent did not understand the nature or consequences of the agreement and had no meaningful independent legal advice.

The court held that, although unjust enrichment was established, the trial judge erred by granting a proprietary constructive trust without first considering whether a monetary remedy would suffice under the Kerr framework.

The proper remedy was equalization under the Family Law Act, resulting in an equalization payment of $390,646.77 secured by a charge on the farm.

Retroactive child support from the date of separation was upheld, but interest on arrears was reduced from 10 per cent to 3 per cent, and the loan repayment order was set aside.

The appellant appealed a summary judgment dismissing her action against the Children's Aid Society and its employees.

The action arose from comments recorded in a child protection file relating to the appellant's grandchild.

The Court of Appeal upheld the motion judge's findings that the employees were protected from suit by statute, the claims lacked evidentiary support, and the statements were protected by qualified privilege.

The appeal was dismissed with costs.

The respondent and the deceased held title to their matrimonial home as joint tenants.

They were in the process of separating and dividing their matrimonial assets when the deceased died.

The respondent claimed exclusive ownership of the home through the right of survivorship.

The deceased's estate trustees brought an application for a declaration that the estate was entitled to an undivided, one-half interest in the matrimonial home, arguing the joint tenancy had been severed by a course of dealing.

The application judge dismissed the application.

The Court of Appeal allowed the appeal, finding that the application judge erred by adopting a category-based approach to the course of dealing test.

The spouses' conduct, including negotiating an equal division of assets and opening separate bank accounts, demonstrated they were mutually treating their co-ownership as a tenancy in common.

The self-represented father appealed a motion judge's order stipulating that his access to his 15-year-old daughter be only with her consent and prohibiting him from initiating contact with her.

The father argued the order was unjustified, that circumstances had changed, and that the motion judge was biased.

The Court of Appeal dismissed the appeal, finding no evidence of bias and holding that the motion judge properly focused on the best interests of the child, giving appropriate weight to the 15-year-old's expressed wishes to initiate contact herself.