Family and Matrimonial Law - ONCA

The husband appealed the trial judge's equalization payment and spousal support orders, arguing errors in determining the matrimonial home, denying a tax liability deduction, and calculating support.

The wife cross-appealed the denial of pre-judgment interest, indexing, security for support, and compensatory support, as well as the treatment of mortgage payments on excluded property.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding no errors in the trial judge's factual findings or exercise of discretion, though it amended a review clause on consent.

Following the dismissal of the appellant's family law appeal regarding the sale of the matrimonial home, child support, spousal support, and section 7 expenses, the court received written submissions on costs.

The respondent, who was entirely successful on the appeal, was awarded costs in the amount of $2,500 inclusive of disbursements and HST.

The appellant, a second mortgagee on a matrimonial home, appealed a judgment denying its claim for additional funds and interest based on unregistered amending agreements.

The appellant argued its claim trumped that of an execution creditor.

The Court of Appeal dismissed the appeal, finding the appellant had previously admitted its security only applied to the registered principal amount and had taken an inconsistent position in a separate action.

The court also rejected the appellant's equitable mortgage argument and upheld the costs awards.

The appellant father appealed from the dismissal of his Superior Court of Justice appeal from a Crown wardship order without access made in the Ontario Court of Justice in respect of his son.

The child had been in care since he was four months old.

The appellant argued that the trial judge should have weighed the evidence differently and should have given him sole custody.

The Court of Appeal found no errors of law by either the trial judge or the appeal judge.

The appellant had not proposed a plan of care for sole custody at trial, and the trial judge did not err in concluding that continuing access would not be beneficial and meaningful for the child.

The appeal was dismissed.

The Court of Appeal issued an addendum to its oral reasons released on April 24, 2015, which allowed the appeal and dismissed the cross-appeal.

On consent of counsel, the Court added a declaration that the appellant is the sole surviving spouse of the deceased and is entitled to receive all surviving spouse pension benefits from the respondent benefit administrators corporation.

The parties settled their matrimonial litigation in 2008 with a consent order providing for $3,000 monthly spousal support with no termination date.

In 2010, the respondent sought to terminate support and obtain child support, citing a decrease in his income and the appellant's unexplained accumulation of wealth.

The trial judge found a material change in circumstances, terminated spousal support, and ordered the appellant to pay child support.

On appeal, the Court of Appeal upheld the finding of a material change but found the trial judge erred by failing to consider the circumstances at the time of the original consent order, effectively rescinding rather than varying it.

The appeal was allowed and a new trial ordered.

Following an appeal where the appellant wife was successful, the parties agreed on consent to set aside the trial costs disposition.

The Court of Appeal ordered that the trial judge determine the costs of the proceedings below, as well as the costs of the appeal and cross-appeal, bearing in mind the appellant's success.

The appellant appealed a summary judgment order requiring him to repay $195,538.98 to a joint line of credit and $10,000 to a corporate respondent, arising from funds withdrawn during matrimonial proceedings.

The appellant argued the repayment obligations had not matured and were tied to other outstanding financial issues.

The Court of Appeal dismissed the appeal, finding the repayment obligations had matured based on the clear terms of the signed documents and the availability of funds, and that no triable issue was established.

The appellant appealed the trial judge's findings regarding net family property deductions, imputed income for child support, and spousal support.

The Court of Appeal upheld the trial judge's decision, finding that the appellant failed to discharge the onus of proving his date of marriage deductions due to a lack of documentation.

The court also found no error in the trial judge's imputation of income, including capital gains, for child support purposes, nor in the modest spousal support award granted to the respondent.

The appellant and respondent cohabited and signed a domestic contract establishing a separate property regime.

After separation, the appellant sought a constructive trust over the respondent's home, arguing the contract was unenforceable because his signature was not witnessed as required by s. 55(1) of the Family Law Act.

The motion judge granted summary judgment dismissing the claims.

The Court of Appeal upheld the decision, finding that the strict witnessing requirements of s. 55(1) may be relaxed where the contract was executed without oppression, with full disclosure, and independent legal advice.

The court also rejected arguments that the contract was ambiguous or had been repudiated.

The appellant father appealed a trial decision dismissing his application under the Hague Convention for the return of his six-year-old daughter to Peru.

The mother had wrongfully retained the child in Ontario but invoked the Article 13(b) 'grave risk' exception, citing a history of domestic violence.

The Court of Appeal upheld the trial judge's finding that returning the child to Peru would expose her to a grave risk of physical or psychological harm or place her in an intolerable situation.

The appeal was dismissed, allowing the mother's custody claim to proceed in Ontario.

The appellant abandoned her appeal from the order of the Superior Court of Justice dated November 24, 2011.

The appellant appealed a trial judgment regarding child and spousal support, arguing the trial judge erred by not imputing income to the respondent for the period between February 2008 and August 2009.

The Court of Appeal agreed, finding the respondent had failed to pursue available income sources such as CPP, long-term disability, and RRSP withdrawals during that time.

The Court imputed an annual income of $30,000 to the respondent for that period and ordered a recalculation of support.

The appeal regarding the tax treatment of the spousal support set-off was dismissed.

The appellant mother sought leave to appeal a consent order granting shared custody of a two-year-old child, arguing her consent was obtained under duress due to the motion judge's comments.

The Court of Appeal majority held that the order was indeed a consent order requiring leave to appeal under s. 133(a) of the Courts of Justice Act.

The majority established that leave to appeal a consent order involving children requires an arguable case that the order was not in the child's best interests or that consent was vitiated by factors like duress.

Finding no evidence of duress on the record, the majority dismissed the application for leave to appeal, without prejudice to the mother bringing a motion to set aside the order under rule 59.06(2).

The dissenting judge would have granted leave and allowed the appeal, finding the motion judge erred in principle by failing to fully consider the child's best interests.

Three organizations (UNHCR, CCR, and CCLA) brought motions for leave to intervene in an appeal concerning the return of a child to Mexico under the Hague Convention.

The child had been granted refugee status in Canada.

The respondent on appeal sought to adjourn the intervention motions until after her motion to quash the appeal was decided.

The court dismissed the adjournment request to avoid delaying the scheduled appeal hearing.

The court granted leave to intervene to all three organizations, finding they could make useful contributions on the intersection of refugee law, the Hague Convention, and Charter rights, without causing injustice to the parties.

Strict conditions and page limits were imposed on the interveners.

Following an appeal where success was divided, the Court of Appeal for Ontario issued a costs endorsement ordering that each party bear their own costs.

The appellant appealed the trial judge's awards for section 7 expenses and spousal support.

The parties have three children, two of whom are disabled.

The Court of Appeal found no reversible error in the trial judge's calculation of section 7 expenses, noting the children's needs exceeded available funds and the trial judge was aware of government assistance.

The Court also upheld the spousal support award of $2,500 per month, finding it supported by the evidence.

The appeal was dismissed.

The appellant father appealed a trial judgment awarding sole custody of the parties' two children to the respondent mother and failing to determine access.

The Court of Appeal found that the trial judge erred in principle by placing undue emphasis on the father's past deceitful conduct and insufficient emphasis on the children's best interests under the Divorce Act.

The trial judge failed to consider the children's needs, the maximum contact principle, and the merits of the existing shared parenting arrangement.

The appeal was allowed and a new trial was ordered on the issues of custody, access, and child support.

The self-represented appellant argued on appeal that trial counsel failed to put certain evidence before the court, or alternatively that the trial judge failed to apprehend evidence concerning ability to pay.

The court held that if counsel failed to adduce evidence, any remedy was not through the appeal.

It further found nothing in the record or the trial reasons to call into question the judge's treatment of the evidence or to suggest bias.

The appeal was dismissed with costs.

The appellants challenged findings that they engaged in fraudulent conveyances intended to permit the appellant husband to seek termination of child and spousal support obligations.

The Court of Appeal held that the trial judge's findings of fact and credibility were amply supported by the evidence, including suspicious transfers of shares and property for inadequate consideration and in secrecy.

The court also upheld the tracing of proceeds to a residential property and the conclusion that support obligations would not be honoured.

The appeal, including the challenge to the costs award, was dismissed with costs.