Family and Matrimonial Law - ONCA

The appellant mother appealed orders from a motion to change, challenging findings on material change in parenting time, child and spousal support variations due to income changes, and credit for matrimonial home expenses.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings, emphasizing deference to factual conclusions and proper application of the Federal Child Support Guidelines.

The respondent, Ardian Fishka, brought a motion to dismiss two family law appeals initiated by the appellant, Melissa Bell, arguing they were frivolous, vexatious, and an abuse of process under Rule 2.1 of the Rules of Civil Procedure.

The Court of Appeal for Ontario reviewed the extensive litigation history, noting the appellant's repeated re-litigation of decided issues, abusive conduct, and deliberate non-compliance with court orders, including orders for security for costs and previous cost awards.

The court found the appeals clearly met the criteria for dismissal under Rule 2.1, emphasizing the need for finality in litigation and preventing the abuse of court resources.

This appeal concerned a family law dispute arising from the breakdown of an 18-year relationship, focusing on decision-making responsibility, parenting time for their child, and allegations of family violence.

The appellant mother challenged the trial judge's order for joint decision-making, arguing a lack of effective communication and a failure to properly consider family violence.

She also appealed the costs award.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that joint decision-making was in the child's best interests despite communication challenges, that family violence allegations were thoroughly considered and rejected, and that the costs award was a proper exercise of discretion.

The Court of Appeal for Ontario heard a motion to quash an appeal brought by the respondent, Ms. LaFontaine.

The appellant, Mr. Froom, had appealed an interlocutory order from the Superior Court of Justice.

The motion judge had adjourned Ms. LaFontaine's motion to trial, imposing terms including a requirement for Mr. Froom to deposit US$475,000 into court.

The Court of Appeal determined that the underlying order was interlocutory, not final, and therefore an appeal lay to the Divisional Court with leave, not directly to the Court of Appeal.

Consequently, the appeal was quashed, and Mr. Froom's request to transfer the appeal to the Divisional Court was denied.

Costs were awarded to Ms. LaFontaine.

The appellant sought an extension of time to appeal two orders from a trial judge concerning divorce, property equalization, spousal support, and costs.

While the appellant demonstrated intention and explained the delay, the court found the proposed appeal lacked merit, as it largely reiterated issues already addressed at trial and presented unsubstantiated allegations.

Consequently, the motion for an extension of time to appeal the October 8, 2019 order was dismissed.

The respondent's cross-motion for service by email was granted, with the condition that material also be sent to the appellant's post office box.

Costs were awarded to the respondent.

The husband appealed the trial judge's determination regarding the wife's entitlement to compensatory spousal support, the attribution of income for child and spousal support purposes, the set-off of equalization against retroactive support, and the determination not to award limited term support.

The wife had cross-appealed on the basis of fresh evidence but withdrew the cross-appeal during submissions.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on all issues.

The appellant appealed a summary judgment decision enforcing a Separation Agreement dated October 30, 2012, between the parties.

The appellant sought to set aside the agreement, alleging non-disclosure of assets by the respondent and arguing he did not understand the nature or consequences of the agreement.

The motion judge found no basis to set aside the agreement under section 56(4) of the Family Law Act.

The Court of Appeal upheld the decision, finding that the motion judge properly applied the legal test, made findings open to him, and that the parties were sophisticated individuals who had received independent legal advice.

The court noted that both parties had failed to fully disclose assets, making the appellant's claim disingenuous, and that the agreement itself contained acknowledgments of sufficient disclosure.

The appellants, parents of the wife in a family law proceeding, appealed a summary judgment that found no monies were due under a mortgage they held on the matrimonial home.

The central issue was whether funds provided by the appellants to pay off the existing conventional mortgage constituted a loan or a gift.

The motion judge found the transfers were gifts, not loans, based on the lack of any prior discussion of loan terms, absence of security documentation for earlier transfers, and the celebratory "mortgage free" event after the conventional mortgage was paid off.

The Court of Appeal upheld the motion judge's findings, finding no palpable and overriding error in the factual determinations.

The appellant appealed a trial judgment awarding $1,070,000 to the respondent in a dispute over ownership of a commercial property on Parliament Street in Toronto.

The trial judge found that the father had gifted the property to his daughter, and therefore the proceeds of sale belonged to her.

The Court of Appeal upheld the trial judge's factual findings, finding they met the three criteria for a valid gift and were supported by the evidence.

The appeal was dismissed with costs awarded to the respondent.

The moving party sought to set aside an administrative dismissal of his appeal for delay.

The appeal arose from a motion to change child and spousal support in a long-running family law matter.

The motion judge had dismissed the motion to change due to the moving party's failure to produce required financial disclosure and lack of demonstrated material change in circumstances.

The moving party failed to perfect his appeal within the prescribed time and the appeal was administratively dismissed.

The court dismissed the motion to set aside, finding weak grounds of appeal, inadequate explanation for failure to perfect, unjustified delay in bringing the motion, and prejudice to the respondent.

The Attorney General appealed a Superior Court decision that appointed two amici to assist on an appeal challenging the trial judge's appointment of amici in a complex family law custody and access case.

The appeal judge imposed a stay of proceedings conditional on the Attorney General negotiating a mutually acceptable rate of compensation with the appointed amici.

The Court of Appeal allowed the Attorney General's appeal, finding that Criminal Lawyers' Association does not impose an obligation on the Attorney General to negotiate rates with court-appointed amici, and that a stay is only appropriate where amicus assistance is truly essential and no other qualified counsel can be found.

The court set aside the stay and remitted the matter for the appointment of one amicus from counsel willing to accept legal aid rates.

The appellant appealed the dismissal of her application to set aside minutes of settlement in matrimonial proceedings.

The parties had been in a common-law relationship from 1985 to 1999 and had two adult children.

They lived in Canada, England, and Ireland before separating.

The appellant sought to set aside a 2006 settlement agreement on grounds of non-disclosure of assets, including a Spanish property and stock options.

The trial judge found that while the respondent had failed to disclose certain assets, the agreement was fair and the non-disclosure was not material to the appellant's decision to settle.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error of fact.

The appellant mother appealed a contempt finding by the motion judge for withholding the children from the respondent father in violation of a parenting schedule.

The motion judge found the mother in contempt and imposed double make-up time as a penalty, which the mother subsequently complied with.

The Court of Appeal upheld the contempt finding, finding no palpable and overriding error.

The appeal regarding the penalty was found to be moot as it had been completed.

The court also upheld the motion judge's continued jurisdiction over the matter in this high-conflict family law case, citing best practice principles.

The appellant appealed a trial judgment regarding the equalization of net family properties, specifically challenging the valuation of foreign lands in Iran and the calculation of the respondent's net family property.

Prior to the hearing, the appellant brought motions to preclude the respondent from making submissions due to an alleged breach of costs orders and to adduce fresh evidence.

The Court of Appeal dismissed the preliminary motions, finding no breach of the costs orders and that the fresh evidence could have been adduced at trial with due diligence.

The substantive appeal was also dismissed, as the trial judge made no palpable and overriding errors in valuation and was entitled to draw an adverse inference from the appellant's failure to provide a property valuation.

The appellant wife appealed a trial decision upholding the validity of a marriage contract, arguing it should be set aside due to lack of financial disclosure and unconscionability.

The trial judge had set aside only the spousal support waiver and ordered a further hearing on support.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's exercise of discretion under section 56(4) of the Family Law Act.

The respondent's cross-appeal regarding trial costs was also dismissed.

The appellant loaned money to his son, secured by a mortgage on the son's home.

Years later, the son's former spouse sought to sell the home to satisfy an equalization payment and sought a declaration that the mortgage was statute-barred.

The application judge agreed, finding the 10-year limitation period had expired and no valid acknowledgment existed.

On appeal, the appellant sought to introduce fresh evidence and argued promissory estoppel.

The Court of Appeal dismissed the appeal, refusing to admit the fresh evidence as it could have been adduced at trial and would not have affected the result.

The court also upheld the finding that promissory estoppel did not apply and noted the appellant's conduct disentitled him to equitable relief.

The appellant father sought to relocate with his seven-year-old child from Kincardine to Whitby, relying on a notice provision in a consent order.

The motion judge held that a motion to change was required and dismissed the motion, finding no material change in circumstances.

The Court of Appeal upheld the decision, agreeing that the proposed move contradicted the schooling and access clauses of the order, necessitating a motion to change.

The court also found no error in the motion judge's conclusion that the father's concerns about the stigma of past false abuse allegations were foreseeable at the time of the original order.

The appeal and leave to appeal costs were dismissed.

The appellant mother removed her two children from Egypt to Ontario and sought custody under the Children's Law Reform Act (CLRA).

The trial judge declined jurisdiction, finding the mother had attorned to the Egyptian courts and should not be rewarded for abducting the children.

On appeal, the Court of Appeal admitted fresh evidence of the children's psychological distress and allowed the appeal.

The Court held the trial judge erred in his approach to jurisdiction under ss. 22 and 23 of the CLRA, noting that the best interests of the children must prevail over discouraging abduction when there is a risk of serious harm.

The Ontario court assumed jurisdiction and granted interim custody to the mother.

The appellant appealed the dismissal of her solicitor's negligence claim and the award of full indemnity costs against her.

The claim arose from advice regarding a separation agreement and the treatment of a severance payment.

The Court of Appeal upheld the trial judge's findings that the solicitor did not breach the standard of care and that the appellant suffered no damages.

However, the Court found the trial judge erred in awarding full indemnity costs based on the appellant's conduct at trial.

The trial costs award was reduced from $160,706.99 to $60,000 on a partial indemnity scale, emphasizing the principle of proportionality.

The appeal concerned whether an Ontario court had jurisdiction under the Divorce Act to make and later vary spousal support orders following a foreign divorce.

The court held that the 1990 consent order increasing spousal support was made without jurisdiction because only the court that granted the divorce could then grant corollary relief under s. 4, and the parties' consent could not cure that defect.

It further held that the 1998 variation order was also without jurisdiction because a null order cannot be varied and Canadian courts have no jurisdiction under the Act to vary foreign support orders.

The appeal was allowed, the variation order was set aside insofar as it related to spousal support, and no costs were awarded.