Family and Matrimonial Law - ONCA

The Court of Appeal for Ontario dismissed the appeal of Mounia Hassani Alami from a comprehensive trial judgment addressing property, support, and tort claims following the parties’ separation and divorce.

The appeal focused on the trial judge’s findings regarding a resulting trust in the matrimonial home and responsibility for a post-separation mortgage.

The Court upheld the trial judge’s application of the resulting trust doctrine and allocation of mortgage responsibility, finding no reviewable error.

Costs of $15,000 were awarded to the respondent.

The Court of Appeal for Ontario considered whether the application judge erred in refusing to order the return of a child to the United Kingdom under the Hague Convention, on the basis that the left-behind parent had consented to or acquiesced in the child’s retention in Canada.

The Court found that the application judge conflated consent to future relocation with consent to the present retention, and that the evidence did not support a finding of consent or acquiescence to the wrongful retention.

The appeal was allowed and the return of the child to the U.K. was ordered, with undertakings imposed to protect the child’s best interests.

The Court of Appeal for Ontario quashed the appeal of Michael Paul Duffy, finding that the order under appeal was interlocutory rather than final.

The order in question enforced a right of first refusal for the sale of the matrimonial home, as previously agreed in a consent order.

The court held that the order did not determine the substantive rights of the parties but merely implemented the final consent order, and thus an appeal lay to the Divisional Court with leave, not to the Court of Appeal.

Costs were awarded to Leona Duffy.

The Court of Appeal for Ontario considered motions to set aside an administrative dismissal of an appeal and to extend the time to perfect the appeal, as well as a cross-motion for conditions to protect assets pending appeal.

The court granted both the motion and cross-motion, reinstating the appeal and imposing conditions to address the risk of asset dissipation.

The decision discusses the relevant factors for setting aside an administrative dismissal and for granting an extension of time, including the merits of the appeal, the explanation for delay, and the best interests of the children.

The court also imposed specific conditions to ensure transparency and protect the respondent’s interests.

This endorsement addresses cross-motions by Basseth McLean and Sonia Connell, each seeking to have the other declared a vexatious litigant under the Rules of Civil Procedure and the Courts of Justice Act.

The Court reviews the lengthy litigation history between the parties, including multiple appeals and motions regarding the sale of their former matrimonial home and related costs.

Both vexatious litigant motions are dismissed, as is Ms. Connell’s motion to strike Mr. McLean’s pleadings.

The Court grants Mr. McLean an extension to file responding materials and allows Ms. Connell to add an appeal of a costs order to her perfected appeal.

The Court sets strict directions to ensure the efficient progress of the appeal and prohibits further motions without leave.

This appeal concerns the costs consequences of protracted family law litigation between K.K. (the husband) and M.M. (the wife).

The Court of Appeal addresses whether the trial judge erred in awarding full recovery costs to the wife, staying prior costs orders made in favour of the husband, and whether there was a reasonable apprehension of bias.

The majority upholds the trial judge’s costs award and the stay of prior costs orders, finding exceptional circumstances due to the husband’s bad faith.

A dissent would reinstate the stayed costs orders, holding that the trial judge exceeded her authority under s. 106 of the Courts of Justice Act.

The Court of Appeal for Ontario considered a motion for restrictions on access to the court file and decision in a Hague Convention child abduction appeal, where the child had been granted refugee status.

The appellant sought anonymization, a publication ban, and sealing of documents created under the Immigration and Refugee Protection Act.

The court reviewed the open court principle, the best interests of the child, and the test for discretionary limits on openness from Sherman Estate v. Donovan.

The court ordered anonymization, a publication ban, and sealing of IRPA documents, but declined to seal the entire file, balancing the child’s privacy and safety against the public interest in court openness.

The Court of Appeal for Ontario dismissed a motion for a panel review of a motion judge’s decision denying an extension of time to perfect an appeal in a family law matter.

The panel found no error in the motion judge’s exercise of discretion, holding that the correct legal principles were applied and the result was reasonable.

The appellant’s arguments regarding the respondent’s opposition to the motion were rejected based on the record.

The motion was dismissed without costs.

The Court of Appeal for Ontario dismissed both the main appeal and cross-appeal in a dispute over the beneficial ownership and occupation of a house acquired during a brief marriage.

The court upheld the application judge’s finding that Ms. Qu was the 100% beneficial owner of the house by way of resulting trust, rejecting Mr. Zhang’s arguments regarding the presumption of joint tenancy and the sufficiency of evidence.

The court also upheld the award of occupation rent to Ms. Qu and declined to order additional security for potential future repairs, finding no error in the application judge’s approach or findings.

The Court of Appeal for Ontario dismissed a motion by Rajinder Singh Rathee to amend a previous appellate decision regarding the quantum of lump sum spousal support.

The court held that the alleged error was not a clerical or accidental slip within the meaning of Rule 59.06(1) of the Rules of Civil Procedure, but rather a substantive disagreement with the court’s reasoning.

The motion was dismissed and costs were awarded to Noelle Heen-Lune Rathee.

The Court of Appeal for Ontario considered a motion by Barbara Lang-Newlands regarding the operation of the automatic stay under rule 63.01 of the Rules of Civil Procedure following a family law trial judgment.

The court addressed whether certain monetary awards (post-separation adjustments) should be characterized as support and thus exempt from the stay, and whether the stay should be lifted or maintained on various payments pending appeal.

The court declined to recharacterize the payments as support, but exercised its discretion to lift the stay on Ian Newlands' obligation to pay post-separation adjustments, given the risk that Barb would not recover the funds if the stay remained.

The court ordered Barb to pay Ian the net difference and expedited the appeal.

The Court of Appeal for Ontario dismissed the appeal by Kurt Ashley Ritchie from an order upholding, with modification, a separation agreement between himself and Jessica Bortoleti De Oliveira.

The court found no error in the trial judge’s adjustment of child support or in the costs award, which reflected divided success and the parties’ conduct.

The court emphasized the ongoing obligation for both parties to exchange financial information annually and confirmed that no costs would be awarded for the appeal.

The Court of Appeal for Ontario dismissed the father’s appeal from a family law order that varied parenting and support arrangements.

The court found that the trial judge’s reasons were clear, sound, and based on the evidence, and that the findings were consistent with the Divorce Act.

The trial judge’s decision to grant the mother primary care and sole decision-making authority, as well as to vary child and spousal support, was upheld.

The court emphasized deference to the trial judge’s factual findings and the best interests of the children.

The Court of Appeal for Ontario dismissed the appeal of Matthew James Avery from an uncontested trial order requiring him to pay child support, s. 7 expenses, and granting a vesting order for sole title to the matrimonial home to Angela Nadine Wade.

The court found no exceptional circumstances to justify hearing the appeal, no error in the trial judge’s exercise of discretion, and that the appellant had adequate notice of the relief sought.

The court also held that the absence of evidence of the current value of the home did not result in injustice, particularly given the appellant’s failure to participate or provide disclosure.

This is an appeal from an order of the Superior Court of Justice regarding a motion to vary parenting and support arrangements between the parties, parents of two children.

The appellant challenged 20 provisions of a comprehensive order, but the Court of Appeal found no basis for intervention.

The court upheld the motion judge’s findings of a material change in circumstances, the revised parenting schedule, the calculation of child support, the imputation of income, and the costs award.

The appellant’s motion to introduce fresh evidence was also dismissed.

The Court of Appeal for Ontario dismissed the appeal of Berge Marcarian from the trial judge’s determination of the date of separation in his marriage to Karen Nairi Kassabian.

The trial judge found the date of separation to be May 16, 2021, as asserted by the wife, rather than December 10, 2014, as claimed by the husband.

The appellate court held that the trial judge made no palpable and overriding error in her factual findings or application of the law, and that her reasons were sufficient.

The decision provides a comprehensive review of the legal principles and factors relevant to determining the date of separation in family law, emphasizing the objective, fact-driven nature of the analysis and the high deference owed to trial judges on such determinations.

The Court of Appeal for Ontario quashed Hui Shang’s appeal from an order of the Superior Court of Justice, Family Court, dated March 19, 2024.

The order, which resolved legal issues in accordance with Minutes of Settlement, was made under the provincial Family Law Act.

The Court held that, pursuant to section 19(1) of the Courts of Justice Act, any appeal from such an order must be brought to the Divisional Court, not the Court of Appeal.

The appellant, Charles James Hevey, appealed a finding of contempt made against him in a family law proceeding for allegedly violating two preservation orders.

The Court of Appeal found that the first preservation order was not violated as the transactions did not diminish asset value and the appellant did not personally benefit.

Regarding the second order, the court determined that the order lacked clarity, particularly concerning the interplay between paragraphs permitting business operations and reporting requirements.

Applying the *Carey v. Laiken* test for civil contempt, the court concluded that the order did not clearly and unequivocally prohibit the impugned mortgage.

Consequently, the contempt findings and associated sanctions were set aside.

The appellant appealed a trial judge's finding that the date of separation for an equalization claim under the Family Law Act was February 2015.

The appellant argued the trial judge erred in making credibility findings by failing to address alleged inconsistencies in the respondent's evidence and in making findings of fact based on conflicting affidavits not subject to thorough cross-examination.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of evidence and credibility, and no unfairness in the trial procedure regarding witness cross-examination, noting the appellant had requested the limited cross-examination.

The appellant mother challenged the Ontario Superior Court's jurisdiction over her youngest child, who was born in the U.S. and had never been to Canada, in the context of temporary parenting orders.

The Court of Appeal affirmed the motion judge's finding of jurisdiction, holding that the Superior Court had subject-matter jurisdiction under the Divorce Act because the father was ordinarily resident in Ontario.

Furthermore, the mother had attorned to the court's jurisdiction by actively participating in the merits of the underlying motions without formally challenging jurisdiction.

The appeal was dismissed, with no order as to costs due to the mother's reliance on public assistance.