Family and Matrimonial Law - ONCA

The appellant husband appealed an order refusing his application for the partition and sale of the matrimonial home and requiring him to transfer his 50 percent interest to the respondent wife for $1.

The parties separated in 1994, and the husband unilaterally stopped making agreed-upon support payments in 2001.

The Court of Appeal dismissed the appeal, finding that the husband's arrears in support payments, with interest, exceeded the value of his share of the equity in the home.

The application judge's result was upheld on the basis of this equitable set-off.

The Children's Aid Society apprehended the respondent mother's children and placed them in foster care.

While a child protection application was pending before the court, the mother filed a service-related complaint with the Child and Family Services Review Board regarding the Society's failure to place the children with willing family members and its refusal to provide reasons.

The Society challenged the Board's jurisdiction, arguing all matters should be heard by the court.

The Court of Appeal held that the Board correctly assumed jurisdiction, as the specific service-related complaints had not been decided by and were not before the court, interpreting section 68.1(8) of the Child and Family Services Act.

The appellant appealed the dismissal of his motion to set aside two previous orders under Rule 25(19)(b) of the Family Law Rules.

He argued the motion judge failed to take a contextual approach to setting aside a default judgment and that the previous judge lacked jurisdiction.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that alleged legal errors or jurisdictional issues are not 'mistakes' correctable under Rule 25(19)(b), but rather appealable errors.

The appellant was convicted of abducting his two daughters in contravention of a custody order.

On appeal, he argued that he mistakenly believed the order was not a custody order, that the order was not actually a custody order, and that the trial judge failed to consider the defence of necessity.

The Court of Appeal dismissed the appeal, finding that the appellant did not testify to the mistaken belief, the order clearly governed the lawful care of the children, and the evidence did not support a defence of necessity.

The appellant appealed an order dismissing her attempt to set aside or vary a previous order requiring her to make an equalization payment of $32,211.11.

She alleged the original order was obtained by fraud, mistake, or without notice.

The Court of Appeal found there was proper service and notice, and rejected her new argument regarding a $48,000 debt as it was raised for the first time on appeal and lacked evidentiary support.

The appeal was dismissed with costs.

The appellant mother appealed a trial judge's order awarding joint custody of the child to both parents and establishing a mechanism for determining private tutoring.

The Court of Appeal dismissed the appeal, finding that the joint custody order was consistent with the best interests of the child, the parties' initial separation agreement, and the recommendation of the Children's Lawyer.

The court also upheld the tutoring provision as a common-sense mechanism to identify the best educational support for the child.

The appellant appealed a family court judgment ordering him to pay the respondent $45,920.28 for loans and $10,500 for unjust enrichment.

The appellant argued that the monies advanced were co-mingled in a joint account and lost in day trading, and that unjust enrichment could not be established given both parties' contributions to their unmarried relationship.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual determinations regarding the loan and the unjust enrichment were amply supported by the evidence and entitled to deference.

The appellant appealed a summary judgment dismissing her action against her former husband for alleged material non-disclosure when entering into their separation agreement.

The Court of Appeal upheld the motion judge's finding that the appellant, having chosen not to pursue further disclosure with the benefit of independent legal advice, could not resile from the agreement without demonstrating the disclosure was false, inaccurate, or misleading.

The appellant failed to adduce sufficient evidence of non-disclosure, and her assertion that evidence might come to light on a pending refusals motion was speculative.

The appellant husband appealed a trial judge's order requiring him to pay child support, periodic spousal support, and lump sum spousal support.

He argued the trial judge overemphasized the respondent wife's sacrifices during the marriage and awarded an excessive amount.

The Court of Appeal dismissed the appeal, finding no error in principle or material misapprehension of the evidence.

The court noted that while the spousal support award was generous, it was designed to enable the wife to achieve educational and career success similar to what she helped the husband achieve, and deference was owed to the trial judge's findings.

The appellant appealed a trial judge's decision including his pension in the equalization of net family property and dismissing his claims for spousal support and the inclusion of a pre-separation debt.

The Court of Appeal upheld the trial judge's finding that the appellant's disability pension had effectively become a retirement pension since he was over sixty years of age, and was therefore subject to equalization.

The court also found no error in the trial judge's dismissal of the spousal support claim due to a lack of medical evidence and a finding of purposeful unemployment, nor in the dismissal of the debt claim due to lack of evidence.

The appeal was dismissed.

The parties indicated confidence that the entire litigation, including the appeal, had settled.

The Court of Appeal adjourned the appeal and directed counsel to notify the court by March 31, 2007, whether the appeal was abandoned or should be rescheduled, noting a serious jurisdictional issue.

The Court of Appeal released a costs endorsement following an appeal.

The court agreed with the appellant that costs should be fixed and ordered the respondent to pay the appellant $15,000 inclusive of disbursements and GST.

Costs of the underlying application were reserved to the trial judge.

The appellant appealed the judgment of the Superior Court of Justice.

The Court of Appeal found no basis to interfere with the trial judge's factual conclusions, noting that the trial judge found the presumption of advancement had been rebutted.

The appeal was dismissed, and costs were awarded to the respondent in the amount of $12,500.

The appellant appealed the dismissal of her claim for spousal support under the Divorce Act.

The parties had signed a separation agreement in 1992 under which the appellant released all claims to further support after June 1994.

The appellant subsequently failed to qualify to practice medicine and applied for support in 2001 while destitute.

The Court of Appeal upheld the trial judge's decision, finding that the trial judge had properly applied the principles later established in Miglin v. Miglin.

The trial judge correctly concluded that the agreement substantially complied with the Divorce Act's objectives and that the appellant's current circumstances were largely the result of her own choices, making a support order unjustified.

The appellant mother appealed an order varying a consent order and awarding custody of her seven-year-old son to the respondent father.

The trial judge had found a material change in circumstances based on the father disclosing the child's existence to his wife, and relied on an assessor's report criticizing the mother's attitude towards the father.

The Court of Appeal allowed the appeal, finding that the disclosure did not constitute a material change in circumstances.

Furthermore, the Court held that the trial judge erred by placing undue emphasis on the mother's conduct without sufficient evidence that it had a detrimental effect on the child, who was developing well.

Custody was restored to the mother with generous access to the father.

The appellant father appealed a judgment dismissing his motion for an order compelling the return of his child to Toronto.

He argued the motion judge failed to consider the best interests of the child, demonstrated bias, and he sought to introduce fresh evidence.

The Court of Appeal rejected the arguments regarding the best interests of the child and bias, finding no support on the record.

The court also declined to admit the fresh evidence, concluding it would not have altered the outcome.

The appeal was dismissed with costs fixed at $10,000.

The parties separated and exchanged correspondence to settle their family law dispute prior to commencing litigation.

The respondent made an offer to settle that referenced Rule 49 of the Rules of Civil Procedure.

The appellant made a counter-offer, which was rejected, and then purported to accept the respondent's original offer.

The appellant brought a motion for judgment to enforce the settlement.

The Court of Appeal dismissed the appeal, holding that Rule 49 does not apply to pre-litigation offers and that the reference to Rule 49 in the offer did not incorporate its provisions by reference.

Therefore, under the common law, the appellant's counter-offer destroyed his power to accept the original offer.

The appellant challenged the constitutionality of section 43 of the Criminal Code, which provides a defence for parents and teachers who use reasonable force to correct a child.

The appellant argued that the provision violates sections 7, 12, and 15 of the Charter.

The Court of Appeal dismissed the appeal, finding that while section 43 engages a child's security of the person, it does not violate the principles of fundamental justice.

The court also held that section 43 does not constitute state-imposed cruel and unusual punishment under section 12, and any infringement of equality rights under section 15 is justified under section 1 of the Charter.

The appellant appealed a trial judge's decision, challenging three findings of fact and the valuation of a motor vehicle claim.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were supported by the evidence and that it was open to the trial judge to find the appellant exceptionally unreliable and the motor vehicle claim unproven.

The appellant appealed a decision regarding the characterization of funds from a non-competition agreement.

The Court of Appeal dismissed the appeal, holding that money paid and to be paid under the non-competition agreement constitutes property for the purposes of establishing the appellant's net family property.