Family and Matrimonial Law - ONCA

The parties separated in 2019.

After two years of the appellant failing to provide financial disclosure despite multiple court orders, his pleadings were struck and the matter proceeded to an uncontested trial.

The trial judge imputed an annual income of $150,000 to the appellant for child support and ordered the matrimonial home transferred to the respondent to satisfy the equalization payment.

The appellant appealed, arguing the process was unfair and the reasons inadequate.

The Court of Appeal dismissed the appeal, finding the uncontested trial was a proper consequence of the appellant's blatant non-disclosure and the trial judge's reasons were sufficient for appellate review.

The appellant sought to vary a 2015 consent order (Mossip Order) regarding child and spousal support after the respondent's income significantly increased post-separation.

The motion judge dismissed the variation request.

On appeal, the Court of Appeal found the motion judge misapprehended evidence regarding child support overpayments, leading to arrears.

The Court also found the motion judge erred in law by concluding spousal support entitlement was solely contractual and by failing to consider the appellant's material change in circumstances.

The appeal was allowed in part: child support arrears were fixed, and spousal support was varied and made time-limited, while the refusal to order ongoing Table amount child support for adult children was upheld.

The parties appealed and cross-appealed a trial judgment dealing with equalization, spousal support, and costs following their separation.

The appellant challenged the valuation of the family's motel business and the deduction of notional real estate fees, while the respondent challenged the spousal support and costs awards.

The Court of Appeal allowed the appeal in part, finding the trial judge erred in deducting notional real estate fees from the respondent's net family property because there was no evidence a sale was likely in the foreseeable future.

The equalization payment to the appellant was increased by $40,000, but the appeal and cross-appeal were otherwise dismissed.

The moving party brought motions to review an order of a single judge of the Court of Appeal that denied his request to expand the appeal records and hear two appeals together, and ordered him to perfect both appeals within 45 days.

The moving party sought an adjournment of his review motions to obtain further evidence, which the court denied because the review must be based on the material before the single judge.

The court upheld the single judge's decision regarding the records and hearing the appeals together.

However, the court clarified the timeline for perfecting the cross-appeal in the family law matter, allowing the moving party 45 days after the appellant perfects her appeal.

The motion was otherwise dismissed with costs awarded to the respondent lawyer.

The appellant father brought a second appeal regarding a trial judgment that awarded custody of a three-year-old child to the respondent mother and allowed her to relocate to England.

The first appeal judge upheld the trial judge's decisions on custody and relocation but remitted the final order back to the trial judge to correct errors and inconsistencies.

The Court of Appeal held that the appeal judge erred in remitting the matter, as the trial judge had properly settled the order and was functus officio.

The appeal was allowed in part to set aside the remitted order and restore the original trial order.

The appellant father brought a motion for interim access to his three-year-old child for a three-week block in Toronto, which was heard alongside his appeal of a custody and relocation order.

The respondent mother opposed the motion, arguing it would interfere with the child's half-day nursery school attendance and conflict with a prior access order.

The Court of Appeal granted the motion, finding that fostering a meaningful relationship with the non-custodial parent and his family outweighed the importance of nursery school attendance, and noting that the prior access order restricting access to one-week blocks was a nullity.

The appellant appealed an order striking his pleadings in a family law proceeding for persistent failure to comply with court orders requiring financial disclosure.

The Court of Appeal dismissed the appeal, emphasizing that financial disclosure is the most basic obligation in family law and is automatic.

The Court held that the appellant's conduct in ignoring three court orders put him in the exceptional category of cases where the motion judge's discretion to strike pleadings was reasonably exercised.

The appellant appealed an order declaring a child to be a child of the marriage and requiring him to pay retroactive and ongoing child support, as well as spousal support.

The appellant challenged the trial judge's findings on the child's status, his income, and the respondent's ability to contribute.

The Court of Appeal dismissed the appeal, finding no error in principle or serious misapprehension of evidence by the trial judge.

The court also declined to admit fresh evidence regarding the appellant's income, noting it lacked cogency and that the trial order already provided a mechanism for adjusting support based on annual income tax returns.

Following the dismissal of the appellant's appeal, the successful respondent sought costs of $800, primarily for disbursements.

The Court of Appeal found the claim reasonable and ordered the appellant to pay $800 in costs to the respondent.

The appellant appealed an order dismissing her motion to extend the time to appeal a Crown wardship order regarding her 14-year-old daughter.

The Court of Appeal dismissed the appeal, finding no explanation for the lengthy delay, no merit to the appeal, and that it was not in the best interests of the child, who had been placed for adoption, to upset her current arrangements.

The appellant father appealed a Superior Court of Justice order dismissing his claim for custody and continuing an existing Ontario Court of Justice custody order with a scheduled review.

The Court of Appeal allowed the appeal on jurisdictional grounds, finding that the Superior Court lacked jurisdiction to vary the existing Ontario Court of Justice order.

The proper procedure would have been a motion to change in the Ontario Court of Justice, followed by a request for consolidation and transfer.

The Court of Appeal declined to use its powers under the Courts of Justice Act to retroactively cure the jurisdictional defect through a double transfer.

Although the appeal was allowed on jurisdiction, the Court of Appeal noted that the trial judge did not err in his substantive analysis of the children's best interests or in ordering a review.

The original Ontario Court of Justice order continues to govern.

The moving party mother sought an extension of time to file an application for leave to appeal a Divisional Court decision confirming Crown wardship orders for her two children.

The children's aid society opposed the motion, arguing that the children had already been placed for adoption and that statutory provisions barred an extension.

The court declined to decide the jurisdictional issue but dismissed the motion on the merits, finding that the mother had no prospect of success on appeal because the proposed grounds involved factual determinations that had been fully canvassed by the lower courts.

The appellant lawyer was sued for defamation by the opposing party in a former matrimonial proceeding.

The lawyer sought to use documents provided to him by his former client to defend the defamation action, and moved for relief from the deemed undertaking rule.

The motion judge dismissed the motion and ordered the lawyer to return the documents to his former client.

The Court of Appeal allowed the appeal, holding that the deemed undertaking rule did not apply because the documents were not obtained under the discovery rules, but rather provided by the client to her own lawyer.

The Court also set aside the order to return the documents, as neither party had requested that relief.

The parties entered into a separation agreement requiring spousal support variations to be dealt with by arbitration.

After the husband stopped paying support, the wife filed the agreement for enforcement under s. 35 of the Family Law Act.

The husband then applied to the Superior Court to vary support and moved under the Family Responsibility and Support Arrears Enforcement Act to prevent the suspension of his driver's licence.

The motion judge held the court had jurisdiction to vary support because the wife sought enforcement under the Family Law Act.

The Court of Appeal allowed the wife's appeal, holding that neither the Family Law Act nor the Enforcement Act supersedes a valid domestic contract's exclusive arbitration provision.

The appellants appealed a family law order regarding access and other issues, arguing the trial judge erred by proceeding in the absence of the appellant's mother.

The Court of Appeal dismissed the appeal, finding the appellant had sufficient notice to secure the mother's attendance and failed to request an adjournment.

The court declined to retry the issue of access, finding no error in the trial judge's disposition.

The respondent moved to quash an appeal from an order dismissing a rule 21.01(1)(b) motion to strike a same-sex former partner's spousal support claim.

The underlying action involved a support claim advanced after a long same-sex relationship ended before the legislative amendment to s. 29 of the Family Law Act extending spousal support rights to same-sex couples.

The Court of Appeal held that an order dismissing a motion to strike for failure to disclose a reasonable cause of action is interlocutory, regardless of the forcefulness of the motion judge's reasons, because the substantive rights remain to be determined at trial.

The appeal therefore lay to the Divisional Court with leave, not to the Court of Appeal, and was quashed with costs.

The appellant sought to vary child support after early retirement and a resulting reduction in income.

The appeal concerned whether support should revert to the pre-retirement guideline amount or remain at the lower amount based on pension income.

With both parties effectively supporting continuation of the lower guideline figure, the court held it did not make sense to assume income above pension benefits after retirement.

The appeal was allowed and child support was fixed at $266 per month, with no order as to costs at any level.

The appellant sought to reopen a family law appeal to vary the costs order following reasons in a child support case.

The Court of Appeal declined to reopen the appeal and clarified that its earlier statement that the paying spouse should ordinarily bear the child support litigation costs was confined to exceptional cases involving income vastly exceeding $150,000 and a huge disparity in ability to pay.

The court further held that any such approach remained subject to Rule 49 of the Rules of Civil Procedure and, where applicable, Rule 18 of the Family Law Rules, as well as the requirement that the payee spouse have acted reasonably.

The relationship between that approach and rule 24(1) of the Family Law Rules was left for another day because those rules did not apply to this case.

The appellants appealed the dismissal of an application to vary a spousal support term contained in a divorce judgment incorporating minutes of settlement with a non-variation clause.

The appellant relied on reduced income and the respondent’s bankruptcy as material changes in circumstances under s. 17 of the Divorce Act.

The court held that the alleged changes were either immaterial or foreseeable at the time of settlement, and that the application judge’s conclusion attracted appellate deference.

Subject to deleting one paragraph of the judgment on consent, the appeal was dismissed with costs.

The appellants sought a stay pending appeal of a family law order rejecting a variation application, maintaining support at $5,000 per month, fixing arrears, and requiring assignment of a second mortgage as security.

Applying the stay pending appeal test, the court held there was no sufficient showing of irreparable harm and that the balance of convenience favoured the respondent.

The court also noted concerns about the merits and the moving party's unilateral reduction of support payments contrary to the existing order.

The stay motion was dismissed, security for costs was refused, and motion costs were fixed in favour of the respondent.