Family and Matrimonial Law - ONCA

The respondent, having been entirely successful on the appeal of a family law matter, sought partial indemnity costs of $53,407.33.

The appellant argued the costs should not exceed $18,789.66.

The Court of Appeal applied the principle that costs must be fair, reasonable, and proportionate.

Acknowledging the voluminous record and the importance of the issues, including child custody, the court fixed the costs payable by the appellant to the respondent at $35,000 inclusive of disbursements and taxes.

Following a successful appeal of a summary judgment order, a dispute arose regarding the settling of the court's order on costs.

The respondents argued that a portion of the motion judge's costs order related to a support motion should remain intact.

The Court of Appeal agreed with the appellant that the motion judge had awarded a global amount for all motions, which were intertwined.

The court clarified that the entire costs award below was set aside and reserved to the trial judge.

The appellant mother took her three children from Kuwait to Canada without the respondent father's consent and claimed refugee status, alleging domestic violence.

The father applied for the children's return to Kuwait.

The application judge ordered the children returned, finding no risk of serious harm under s. 23 of the Children's Law Reform Act.

On appeal, the Court of Appeal found the application judge erred by rejecting uncontradicted expert evidence that the children's fears of their father were independent and not influenced by the mother.

The Court also held that ordering the children's return before their refugee claims were determined violated the principle of non-refoulement.

The appeal was allowed and a custody hearing was ordered in Ontario.

The parties entered into a prenuptial agreement waiving spousal support and property rights.

After separation, the appellant husband sought equalization and spousal support, and requested the marriage contract be set aside under the Family Law Act.

The motion judge granted summary judgment to the respondent wife, finding the request to set aside the contract was statute-barred by the two-year limitation period in the Limitations Act.

The Court of Appeal allowed the appeal, holding that a request to set aside a marriage contract is a proceeding for a declaration where no consequential relief is sought, and is therefore not subject to a limitation period under s. 16(1)(a) of the Limitations Act.

The underlying claims for equalization and support remain subject to their respective limitation periods.

The appellant father appealed a trial decision granting sole custody of the child to the respondent mother, ordering him to pay child and spousal support, and awarding trial costs to the respondent.

The appellant argued the trial judge erred in failing to determine an exact separation date, in awarding spousal support given his high student debt, and in not ordering parallel custody.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the best interests of the child framework or the spousal support guidelines, and noting the trial judge appropriately considered the appellant's debt and the history of intimate partner violence.

The appellant appealed a motion judge's order terminating child and spousal support and requiring her to reimburse the respondent for overpayments.

The Court of Appeal upheld the termination of spousal support, finding no reversible error in the motion judge's conclusion that the appellant had achieved self-sufficiency following an inheritance.

However, the Court found the motion judge erred by failing to increase spousal support for the period after child support ended, and made several calculation errors regarding child support overpayments.

The appeal was allowed in part, adjusting the amounts owed between the parties.

The appellant husband appealed an order enforcing a separation agreement and child support arrears.

He argued the motion judge erred in refusing an adjournment and in enforcing the agreement due to an alleged power imbalance, emotional stress, and ambiguity regarding child support for his stepchildren.

The Court of Appeal dismissed the appeal, finding no error in the refusal to adjourn given the appellant's history of non-compliance.

The court also held that ambiguity in the support clause and the appellant's emotional stress were not grounds to invalidate the entire agreement.

The appellant husband appealed the trial judge's decisions regarding spousal support, child support, section 7 expenses, and the dismissal of his third-party claims for invasion of privacy and intentional infliction of mental distress against a former neighbour.

The Court of Appeal dismissed the appeal on all grounds except for a conceded error in calculating section 7 expenses, finding that the trial judge's determinations on income calculation, support, and the third-party claims were supported by the record and free from reversible error.

The appellant, a discharged bankrupt, appealed an order striking a designation of matrimonial home she registered on title and prohibiting her from registering another.

The appellant had previously made an assignment in bankruptcy and vacated the home.

Her trustee in bankruptcy settled her equalization claim, including the home, which was approved by the court without her opposition.

The settlement allowed the respondent to alienate the home.

The appellant registered a second designation after the first was ordered removed.

The Court of Appeal dismissed the appeal, finding that the appellant could not rely on her personal right to possession under s. 19 of the Family Law Act to impede a court-approved settlement she did not oppose.

The Court of Appeal previously dismissed the appellant's appeal regarding child custody and the language of instruction, and requested written submissions on costs.

The appellant argued he was successful on the critical issue of the importance of the children's language of instruction, despite the appeal being dismissed due to the children having remained in French immersion for three additional years.

The respondent argued she was entirely successful and sought $25,000 in partial indemnity costs.

The court applied the usual rule that the successful party is entitled to costs, but reduced the respondent's award to $20,000 on a partial indemnity basis to reflect the appellant's partial success in demonstrating an error by the trial judge.

The appellant appealed a motion judge's order regarding the custody of the parties' two children.

The appellant sought sole custody but agreed the children should continue to reside with the respondent.

The Court of Appeal found no reason to interfere with the motion judge's determination of the best interests of the children and dismissed the appeal.

The appellant appealed an order dismissing his motion to set aside a settlement incorporated into a previous court order.

The settlement required the appellant to pay an equalization amount to the respondent.

The appellant argued the settlement should be conditional on his ability to pay without selling his property in Jamaica.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's decision and noting that the appellant's reluctance to sell the property did not justify failing to pay the equalization amount.

The appellant appealed the dismissal of his application for a declaration that the respondent lawyer breached the deemed undertaking rule by sharing information about a writ against the appellant with another respondent.

The application judge found no breach because the assignment of the writ occurred before the correspondence disclosing the writ and settlement negotiations.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's factual findings.

The court declined to award costs, noting that the respondent lawyer should not have appeared as counsel since he was a named respondent and his conduct was central to the case.

The appellant appealed an order dismissing her motion to set aside a default judgment.

The Court of Appeal found no error in the motion judge's application of the legal test, noting the appellant failed to explain her failure to respond to the proceedings and her delay in moving to set aside the judgment.

The appeal was dismissed, with the appellant permitted to pursue the issue of support as a motion to change.

The appellant appealed a trial judge's finding that the parties cohabited continuously for more than three years and were "spouses" under Part III of the Family Law Act.

The appellant argued the trial judge erred in her factual findings and in her use of evidence from the respondent's psychiatrist.

The Court of Appeal dismissed the appeal, finding the trial judge applied the correct test and her findings were adequately supported by the evidence, including her conclusion that the respondent's infidelities did not negate the spousal relationship.

The appellant sought leave to bring a motion to enforce an alleged settlement agreement, which was required under a previous court order.

The motion judge denied leave, finding the appellant had shown a flagrant and persistent disregard for prior court orders, including failing to give the respondent exclusive possession of four properties.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary order, especially given conflicting evidence on whether a binding settlement agreement had been reached.

The court considered written submissions from the parties regarding costs following an appeal.

The court decided to vary its previous reasons to provide that the appellant is entitled to one third of the costs of the appeal, rather than full costs.

The appellants challenged judgments awarding the respondent recovery on a counterclaim and an equalization payment arising from a family farm and matrimonial property dispute.

The court held that the evidence supported the findings that amounts advanced by the respondent were repayable and that the valuation of assets and equalization calculation were supported by the record.

The court rejected a late-raised unequal division argument because it had not been pleaded and was not disputed at trial.

The order directing payment from monies paid into court from the sale of the milk quota was also upheld.

In a family law appeal concerning spousal support after a long-term marriage, the appellant challenged a trial judgment that failed to make findings on disputed issues or explain the support award.

Although the inadequacy of the reasons would normally have warranted a new trial, the court chose to determine the matter on the existing record to avoid further hardship to the parties.

The court rejected both parties' income positions as unrealistic, imputed a higher annual income to the payor than he asserted, and fixed support at $2,500 per month.

The appeal was allowed to reduce the support award, but costs of both the trial and the appeal were awarded to the respondent.

On an appeal from a Rule 21 determination in a fatal motor vehicle case, the court held that family members' independent nervous shock claims were barred by s. 266 of the Insurance Act because the claimants themselves did not meet the statutory threshold.

However, the majority held that s. 61(1) of the Family Law Act permits recovery for a family member's pecuniary loss in the form of lost income resulting from the death, and is not confined to loss of expected financial benefits from the deceased.

Because the trial judge later took the opposite view and made no necessary factual findings on causation and loss, the trial judgment was set aside and a new trial ordered on the loss of income claim.

No costs were awarded because success was divided.