Family and Matrimonial Law - ONCA

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 appellants, parents whose children were made Crown wards, appealed the dismissal of their action against multiple defendants involved in the child protection proceedings.

The action was dismissed under Rule 2.1.01 of the Rules of Civil Procedure as frivolous and vexatious, being an impermissible attempt to relitigate issues already decided.

The Court of Appeal upheld the dismissal, finding no error in the lower court's decision that the action constituted an abuse of process.

The appellant sought to overturn a motion judge's decision to amend prior court orders, arguing that an equalization payment of $280,000 was still owed despite a subsequent settlement agreement.

The Court of Appeal affirmed the motion judge's finding that the final settlement agreement, which divided funds from the matrimonial home sale, was intended to settle "all outstanding issues," including the equalization payment.

The court applied the "officious bystander test" and common sense to conclude that the equalization payment was implicitly offset by other amounts owed, dismissing the appeal.

The appellant appealed from an order of the Superior Court of Justice dismissing his application against his daughters regarding the transfer of a mortgage from a family company to a family trust.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because the order arose from an oppression application under the Business Corporations Act, for which the proper appellate route is to the Divisional Court, not the Court of Appeal.

The court rejected the appellant's arguments that section 6(2) of the Courts of Justice Act or Rule 6.01(1) of the Rules of Civil Procedure permitted the Court of Appeal to hear the appeal, and declined to reconstitute itself as the Divisional Court.

The appeal was transferred to the Divisional Court.

On appeal from trial judge Sutherland's orders regarding spousal support and property division in a separation agreement dispute.

The trial judge found no basis to set aside the separation agreement under s. 56(4) of the Family Law Act but applied the Miglin test under s. 15.2 of the Divorce Act to award modest lump sum spousal support of $143,933 despite a spousal support waiver in the agreement.

The trial judge concluded the waiver did not substantially comply with the objectives of the Divorce Act.

The father appealed seeking to set aside the property provisions; the mother cross-appealed seeking to uphold the agreement in its entirety.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no reversible error in the trial judge's application of the law to the facts.

The appellant appealed from a trial judge's orders relating to the division of net family property and spousal support in a family law matter.

The principal issues were: (1) whether the trial judge erred in discounting a $5,000,000 promissory note by 90% for equalization purposes, where the note was signed on behalf of the appellant's holding company in favour of his parents for a condominium project loan; and (2) whether the trial judge erred in awarding indefinite spousal support.

The Court of Appeal upheld both decisions, finding that the trial judge properly applied the law regarding contingent liabilities and exercised reasonable discretion in awarding indefinite spousal support based on the respondent's health issues and the compensatory nature of support.

The moving party sought extensions of time to appeal three orders from the Superior Court: a contempt order dated October 10, 2017, a costs order dated January 26, 2018, and a sentencing order dated September 21, 2018, which struck the moving party's pleadings and allowed the respondent to proceed to an uncontested trial.

The motion judge dismissed the extensions for the first two orders on the basis of abuse of process, given the substantial delays, lack of satisfactory explanation, and the moving party's pattern of non-compliance with court orders and procedural rules.

However, the motion judge granted an extension for the sentencing order due to its severe procedural consequences, and stayed that order pending appeal.

The appellant sought a stay of the provisions of a final matrimonial order requiring her to transfer her interest in the matrimonial home to the respondent and vacate the property pending appeal.

The motions judge granted the stay relating to the disposition of the matrimonial home, residency, and division of household contents, while maintaining the obligation to pay child support.

The court found that the appellant established plausible grounds for appeal, irreparable harm to the status quo of the living arrangements, and that the balance of convenience favoured the appellant.

The appellant appealed her sentence for abduction of a child in contravention of a court order.

The appellant had removed her twin children from school in violation of a court-ordered access schedule, driving aggressively to evade the complainant (the children's father).

She pleaded guilty and received a suspended sentence.

On appeal, she argued the sentencing judge erred by considering her prior wrongdoing as an aggravating factor and by emphasizing general deterrence over her specific circumstances.

The Court of Appeal dismissed the appeal, finding the sentencing judge was entitled to consider the appellant's course of conduct in determining whether a discharge would be contrary to the public interest, and was entitled to find that a conditional discharge was not appropriate given the aggravated manner of the offense.

The appellants appealed the dismissal of their action against the estate of their first cousin, Dr. Sherman, and others.

The appellants claimed that Dr. Sherman owed them an ad hoc fiduciary duty to look after their financial interests and that he breached this duty by failing to honour an option agreement that would have allowed them to acquire shares in the family businesses.

The motion judge dismissed the action on two grounds: first, that no genuine issue requiring trial existed regarding the fiduciary duty, and second, that the action constituted an abuse of process as it attempted to re-litigate issues already determined in a prior unsuccessful action against Royal Trust.

The Court of Appeal upheld the dismissal.

The respondent sought an order compelling the applicant to attend for cross-examination on her affidavit filed in support of a motion for advance funding of an appeal.

The applicant opposed the cross-examination.

The court dismissed the respondent's request, finding that the respondent was in breach of a disclosure order and that the court should not grant relief to a party not in compliance with court orders.

The court noted that the adequacy of the applicant's evidence and the evidentiary implications of her refusal to be cross-examined would be matters for the judge hearing the advance costs motion.

The appellant father appealed an order of the Superior Court motion judge who struck his motion to change a trial judge's order for spousal and child support, and granted the Family Responsibility Office's motion for enforcement.

The trial judge had imputed annual income of $110,000 to the father and ordered him to pay ongoing spousal and child support for two daughters and an equalization payment.

The father had failed to comply with multiple court orders, owing over $60,000 in support arrears and over $50,000 in equalization payments.

The motion judge found the father had the means to pay but chose not to prioritize court-ordered payments.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary orders.

The appellant husband appealed a trial judgment in a matrimonial property dispute.

The trial judge found that a declaration of trust and a $300,000 second mortgage were sham documents designed to defeat the respondent wife's interest in the matrimonial condominium.

The trial judge awarded the respondent an equalization payment of $100,500 and rejected an unequal division of property.

The Court of Appeal upheld the trial judge's findings, finding no basis to interfere with the credibility assessments or the detailed reasons for finding the documents to be shams.

The appeal was dismissed with costs awarded to the respondent.

The appellant moved for a stay of an order requiring the return of two children to England under the Hague Convention on the Civil Aspects of International Child Abduction.

The respondent brought a cross-motion to dismiss the appeal.

The application judge had ordered the children returned to England, their habitual residence, after finding that the appellant had wrongfully retained them in Canada.

The Court of Appeal dismissed the cross-motion, finding the two sets of reasons constituted one final order appealable within the prescribed timeframe.

The court refused to stay the order for return of the children, finding no irreparable harm and that the balance of convenience favoured prompt return.

However, the court granted a partial stay with respect to portions of the order purporting to order the appellant's return to England and to award custody to the respondent if the children were not returned by the deadline.

In a matrimonial dispute, the husband appealed the quantum of an equalization payment ordered by the trial judge, while the wife cross-appealed the quantum of child support.

The wife moved to dismiss the husband's appeal for non-payment of interim child and spousal support ordered by Lauwers J.A. The Court of Appeal found that the husband's failure to comply with the interim support order and his failure to pursue or perfect the appeal on a timely basis disentitled him from continuing with the appeal.

The court dismissed the husband's appeal with costs and correspondingly dismissed the wife's cross-appeal without costs.

An appeal concerning the validity of a continuing power of attorney for property executed by an elderly woman in favour of one of her twin sons.

The appellant challenged the validity of the power of attorney on grounds of undue influence and suspicious circumstances, arguing that the respondent son had coerced the grantor into executing the document by restricting her access to funds needed for basic living expenses.

The motion judge upheld the validity of the power of attorney, finding no evidence of undue influence or suspicious circumstances.

The Court of Appeal dismissed the appeal, holding that the transaction was rational and explicable by the parties' relationship, and that the motion judge correctly applied the law.

The appellant appealed the dismissal of his civil action seeking damages against his former spouse and her parents for alleged fraudulent concealment of assets.

The motion judge dismissed the action as an abuse of process, finding that the appellant's claim for damages was premised on an alleged entitlement to an equalization payment governed by the Family Law Act, which can only be pursued in family law proceedings.

The Court of Appeal upheld the dismissal, noting that while the appellant's equalization claim was time-barred under the Family Law Act, he was not necessarily without recourse if he could satisfy the criteria for an extension of time and pursue the matter through family law proceedings.

The appellant appealed a final order from a Superior Court of Justice judge sitting in the Family Court in Ottawa rendered under the Child and Family Services Act.

The Court of Appeal determined that the appeal was within the jurisdiction of the Divisional Court, not the Court of Appeal, based on the unified family court jurisdiction provisions.

The appeal was therefore transferred to the Divisional Court.

An appeal concerning the estate of Paul Penner, who died in March 2013.

A separation agreement required Penner to maintain a $150,000 life insurance policy designating his ex-wife, Pauline McKenny, as beneficiary, with McKenny having a first charge against the estate if the policy lapsed.

Penner failed to pay premiums and the policy lapsed before his death.

McKenny commenced an action more than two years after Penner's death, which would normally be statute-barred under section 38(3) of the Trustee Act.

The Court of Appeal upheld the application judge's finding that the doctrine of fraudulent concealment applied to the estate trustee's conduct, tolling the limitation period until at least September 25, 2013, thereby allowing McKenny's claim to proceed.

The appellant, a father in child protection proceedings, appealed a Superior Court decision that upheld an Ontario Court of Justice order varying his access to children from unsupervised to supervised pending trial.

The Court of Appeal found that the Superior Court order was interlocutory in nature, dealing with interim access pending trial, and therefore the Court of Appeal lacked jurisdiction to hear the appeal.

The court declined to transfer the matter to the Divisional Court, finding that section 19(4) of the Courts of Justice Act precluded such an appeal.

The appeal was quashed for lack of jurisdiction.