Family and Matrimonial Law - ONCA

This is the third appeal brought by the respondent in a family law proceeding concerning equalization payments and the sale of the matrimonial home.

The appellant sought to appeal an order of eviction from the matrimonial home and a power of sale granted by the trial judge due to the appellant's intransigence in the sale process.

The appellant also appealed a costs award of $36,000.

The Court of Appeal dismissed the appeal of the eviction and power of sale order as an abuse of process, noting it was an attempt to circumvent two previous appeals that had been dismissed for delay.

The appeal was also found to be moot as the matrimonial home had already been sold.

The costs appeal was dismissed as the trial judge committed no reviewable error in awarding substantial indemnity costs based on the appellant's unreasonable conduct.

On appeal from a Superior Court decision, the mother challenged the appeal judge's order upholding an extended society care order and varying her access status from access recipient to access holder.

The mother argued that the appeal judge should have ordered a new trial on all issues due to a finding of procedural unfairness regarding the access holder determination.

The Court of Appeal dismissed the appeal, holding that a breach of procedural fairness on a discrete issue does not require a new trial on all matters when the appellate court can properly decide the issue based on the evidentiary record.

The court admitted fresh evidence but found it did not change the outcome, as the evidence supported the extended society care order.

The Court of Appeal considered multiple motions brought by the appellant, Eric Collins, including an extension of time to appeal a final parenting decision, a stay of interim child support orders, and a request to combine appeals.

The respondent, Amber Tiveron, opposed these motions and brought her own motion for security for costs.

The court denied Collins' request for an extension of time, citing jurisdictional issues and the best interests of the children.

His motion for a stay of orders was also denied, as the appeal lacked serious merit and any potential harm was reparable.

Tiveron's motion for security for costs was denied because Collins' appeals were either not properly filed or vulnerable to being quashed, and the underlying grounds were not deemed frivolous or vexatious despite past litigation conduct.

All motions were dismissed, and costs were awarded to Tiveron.

This is an appeal from an order striking the appellant’s action as an abuse of process.

The appellant claimed the motion judge erred in concluding the action was a collateral attack on prior family court orders.

The Court of Appeal found no error, concluding the action entirely paralleled the basis upon which the appellant challenged those orders in Family Court and was a clear attempt to relitigate issues from the child protection proceeding.

The appeal was dismissed.

The appellant appealed a divorce order granted by a pretrial conference judge on the ground of mental cruelty.

The parties had been married on January 6, 2018, never cohabitated, and both sought a divorce based on allegations of mental cruelty against the other.

The pretrial conference judge granted the divorce based on the respondent's application, creating the impression that the divorce was granted due to the appellant's cruelty.

The Court of Appeal found that the judge erred in granting a divorce on the ground of mental cruelty without agreement between the parties that one had inflicted mental cruelty on the other.

Cross-allegations do not constitute agreement.

The court set aside the divorce order and remitted the matter for retrial, noting that the parties would become eligible for a no-fault divorce one year from the separation date.

The appellant appealed a summary judgment dismissing his professional negligence claim against a tax lawyer.

The appellant had retained the tax lawyer to advise on tax implications of a matrimonial settlement involving the purchase of his ex-spouse's shares in a family corporation.

The tax lawyer provided advice on two approaches: a direct purchase (which would trigger significant personal tax liability) and a redemption approach (which would avoid the tax hit).

The appellant ultimately settled using the direct purchase approach with a negotiated "tax discount" rather than the recommended redemption approach.

The appellant subsequently incurred approximately $1.3 million in tax liability and sued for negligence.

The motion judge granted summary judgment dismissing the claim, finding the tax advice was correct.

The Court of Appeal allowed the appeal, finding that partial summary judgment was inappropriate in these circumstances and that serious issues remained regarding the lawyer's professional obligations to ensure advice was communicated to and understood by the client.

The appellant sought to appeal an order dismissing his motion for leave to bring a motion to change a final family law order from 2007 concerning child support, spousal support, and section 7 expenses.

The Court of Appeal declined to entertain the appeal based on the appellant's long and continuing pattern of wilful default in complying with court orders.

Applying the principle from Dickie v. Dickie, the court stayed the hearing of the appeal until the appellant complied with a recent enforcement order.

The court also awarded costs to the respondent.

The appellants, parents of one spouse, appealed a motion judge's order granting partial summary judgment dismissing their claim for an interest in a matrimonial property.

The parents had advanced funds to their son and daughter-in-law, claiming some of those funds were used to purchase the property and that they were entitled to a beneficial interest.

The motion judge found no connection between the advances and the property purchase and concluded there was no evidence the advances constituted a loan.

The Court of Appeal found two reversible errors: a misapprehension of evidence regarding the link between the advances and the property purchase, and internal inconsistency in the motion judge's reasoning regarding the legal characterization of the advances.

The appeal was allowed and the partial summary judgment was set aside, leaving the matter for trial.

The appellant husband appealed an interlocutory order requiring disclosure of income tax returns and a sworn financial statement in the context of a motion to set aside a 2015 separation agreement that capped his income for support calculations at $1 million per year and included a non-disclosure clause.

The respondent wife moved to quash the appeal, arguing the order was interlocutory and required leave to appeal to the Divisional Court.

The Court of Appeal held that the order was interlocutory because it did not finally determine the substantive issue of the separation agreement's enforceability, but rather was a procedural disclosure order.

The appeal was quashed and costs were awarded to the respondent.

An appeal from a motion judge's order staying custody proceedings in Ontario and ordering the return of three adolescent children to Nigeria, their place of habitual residence.

The motion judge found that an Ontario court lacked jurisdiction under section 22 of the Children's Law Reform Act because the children were habitually resident in Nigeria and a custody application was pending there.

The Court of Appeal allowed the appeal, finding that although section 22 did not provide jurisdiction, section 23 of the CLRA permitted Ontario to exercise jurisdiction because the children would suffer serious harm if returned to Nigeria.

The serious harm was based primarily on evidence of physical discipline with objects by the father and the children's mature objections to returning.

The court granted interim custody to the mother with generous access to the father pending a full hearing on the merits.

In supplementary reasons following an appeal regarding property ownership, the Court of Appeal addressed outstanding financial issues between former spouses.

The court ordered the respondent to reimburse the appellant for mortgage and property tax payments she made on his half-interest in a jointly owned property, finding he would otherwise be unjustly enriched.

The court also awarded the appellant additional occupation rent for the post-trial period.

Given divided success on the main appeal issues, the court ordered the parties to bear their own costs for both the trial and the appeal.

The mother sought a stay of an order requiring the return of two young children to their habitual residence in Tennessee, United States, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.

The mother had removed the children from Tennessee to Ontario without the father's consent.

The application judge found the children's habitual residence was Tennessee and that return would not expose them to grave harm.

The mother could not return to the United States due to immigration restrictions, while the father had a criminal record preventing entry to Canada.

The Court of Appeal dismissed the motion for a stay, finding no serious question to be tried on appeal, no irreparable harm to the children, and that the balance of convenience favoured prompt return to the jurisdiction of habitual residence.

The appellant wife appealed the trial judge's decision upholding a cohabitation agreement that released her claims to spousal support and the determination of income for child support purposes.

The parties had signed the agreement before marriage, whereby the wife released all claims to spousal support.

Upon separation after an 18-year relationship and two children, the wife sought spousal support.

The trial judge upheld the agreement and dismissed her claim.

The Court of Appeal applied the two-stage Miglin test and found no error of law or misapprehension of fact.

The court upheld the trial judge's findings regarding the circumstances of the agreement's execution and its substantial compliance with the Divorce Act objectives.

The appeal was dismissed with costs awarded to the husband.

A mother appealed a Crown wardship order made without access to her child.

She moved for interim access pending the hearing of her appeal to the Court of Appeal for Ontario.

The child had been apprehended at eight weeks of age and remained in foster care for approximately three and a half years.

The trial judge found the child was in need of protection due to the mother's mental health issues, lack of insight into the child's needs, and exposure of the child to domestic conflict.

The Superior Court appeal judge dismissed the mother's appeal and found that continued access was neither meaningful nor beneficial to the child and impaired the child's adoption prospects.

The Court of Appeal dismissed the motion for interim access, finding no substantial ground of appeal and determining that access was not in the child's best interests pending the appeal.

The appellant appealed an order dismissing his motion to set aside a default order that required the sale of the matrimonial home and a $400,000 equalization payment to the respondent.

The appellant argued the default order was temporary, not final, and alleged ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding the order was in substance a final determination of equalization entitlement and that the appellant's failure to provide timely instructions undermined his ineffective assistance claim.

The appellant appealed an order of Crown wardship and, in the alternative, sought an order for access to the child.

At the hearing, the appellant abandoned the appeal against the Crown wardship order, limiting the appeal to the issue of access.

The Court of Appeal dismissed the appeal from the Crown wardship order as abandoned so that the child could be immediately placed for adoption.

The Court reserved its decision on the issue of access.

The moving party, a self-represented father, sought an extension of time to file a notice of appeal from a motion judge's order that refused to rescind his accumulated child support arrears.

The father had initially appealed to the Divisional Court, which quashed the appeal for lack of jurisdiction.

The Court of Appeal dismissed the motion for an extension of time, finding that the father failed to provide a reasonable explanation for the delay, that the proposed appeal lacked merit as there was no palpable and overriding error in the motion judge's finding of deliberate underemployment, and that granting the extension would cause undue prejudice to the responding mother, particularly given the father's history of unpaid costs awards.

The appellant appealed a trial judge's decision varying overnight access based on a material change in circumstances.

The trial judge found the appellant neglected the child's reading homework and allowed the child to play age-inappropriate video games.

The Court of Appeal found no error in the trial judge's application of the legal test or assessment of the evidence, noting the appellant did not testify to explain his conduct.

The appeal was dismissed.

The appellant appealed the dismissal of her application for an annulment.

The parties agreed the marriage was never consummated, but the application judge required independent evidence of incurability.

The Court of Appeal allowed the appeal, holding that a reasonable inference of the respondent's psychological inability to consummate the marriage was sufficient to grant the annulment.

In this family property appeal arising from a fact-driven trial, the appellant challenged the trial judge’s findings, particularly concerning ownership of a triplex, and alleged reasonable apprehension of bias.

The court held that the factual findings were amply supported by the record and disclosed no palpable or overriding error.

It also rejected the bias allegation and dismissed the contingent cross-appeal, including the claim for pre-judgment interest.

A motion to admit fresh evidence was also dismissed, and appeal costs were fixed in favour of the respondent.