Family and Matrimonial Law - ONCA

The appellant appealed an order striking his pleadings for allegedly failing to answer undertakings, and the subsequent trial judgment made in his absence.

The Court of Appeal found that the order striking pleadings was made without sworn evidence and without full disclosure by the respondent's counsel regarding the appellant's efforts to answer the undertakings.

The Court set aside the order striking the pleadings and the trial judgment, noting that striking pleadings is an order of last resort.

The parties lived in a common-law relationship for 12 years.

After separation, the respondent was awarded $996,500 for unjust enrichment based on the trial judge's blurring of the 'value received' and 'value survived' approaches to quantify her contribution to the appellant's business success.

The appellant appealed the quantification method.

The Court of Appeal allowed the appeal, holding that the trial judge erred in blurring the two approaches and that the correct method was to determine the 'value received' and perform a quantum meruit calculation.

The award was set aside and the matter remitted for a new trial on quantification.

The appellant appealed the dismissal of his action for the return of money he claimed was a loan to his son and former daughter-in-law.

The trial judge found the money was a gift, believing the testimony of the former daughter-in-law over the appellant and his son.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's credibility findings, which were supported by the suspicious timing of the demand for repayment just before the couple's separation.

The Director of the Family Responsibility Office appealed an order denying a $400 statutorily mandated enforcement fee.

The Court of Appeal quashed the appeal for lack of jurisdiction, noting that the matter involved a claim and judgment for less than $25,000, and directed that the appeal be commenced in the proper forum.

The appellant mother appealed a trial judgment awarding sole custody of the parties' two-year-old son to the respondent father, as well as the access provisions and equalization payment.

The Court of Appeal dismissed the appeal regarding custody and equalization, finding no error in the trial judge's application of the maximum contact principle under the Divorce Act.

However, the Court allowed the appeal regarding access, finding the trial judge erred by refusing to hear the self-represented appellant's submissions that the ordered access schedule was unworkable due to her employment and traffic constraints.

A trial of an issue was ordered for the question of access.

The appellant appealed a final order awarding the respondent retrospective and prospective child and spousal support, as well as costs.

The Court of Appeal dismissed most grounds of appeal, finding no error in the motion judge's decisions not to impute income to the respondent, to order support retroactive to May 2005, and to award $5,000 in child support arrears.

However, the Court found the motion judge erred by failing to provide reasons for awarding $2,000 monthly in spousal support for periods when the respondent was earning income.

The Court varied the spousal support to $1,700 monthly for the period the respondent earned income, upheld the $2,000 monthly award for the period she was unemployed, and reduced the costs award from $8,000 to $7,000.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant failed to disclose a material change in circumstances and failed to comply with Rule 15(7) of the Family Law Rules regarding financial statements.

Costs of $500 were awarded to the respondent.

The appellant appealed a motion judge's decision regarding family law issues and a declaration that she was a vexatious litigant.

The Court of Appeal found no error, noting the appellant had effective legal advice when entering into the 2003 Minutes of Settlement.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed an order regarding spousal support and the construction of a 1994 consent judgment.

The Court of Appeal found no error in the trial judge's findings of fact, application of law, or assessment of accounting evidence.

However, based on fresh evidence admitted on appeal, the court found the trial judge's calculation of the appellant's entitlement to pension benefits fell short by $280 per month.

The court varied the order to increase support payments by $280 per month retroactively, but otherwise dismissed the appeal.

Costs were awarded to the respondent.

The appellant mother appealed a decision granting Crown wardship with no access, relying on fresh evidence of her three-year recovery from drug and alcohol addiction.

The Court of Appeal commended her progress but dismissed the appeal.

The court found that returning the child to the mother and her partner, who had a history of domestic violence, remained highly risky.

It was in the best interests of the three-and-a-half-year-old child to remain a Crown ward with no access so she could be adopted by the foster parents she had lived with since infancy.

The appellant appealed the dismissal of his motion to vary his spousal and child support obligations and rescind arrears.

The respondent requested the court refuse to hear the appeal due to the appellant's willful refusal to pay support, but the court proceeded on the merits.

The appellant argued for a reduced standard of review because the motion judge's findings were based on a written record.

The Court of Appeal rejected this argument, applying the palpable and overriding error standard from Housen v. Nikolaisen, and found no basis to interfere with the motion judge's factual and credibility findings.

The appeal was dismissed with costs.

The respondent in a family law appeal brought a motion to stay the appeal, arguing that the appellant had failed to pay the full amount of support ordered by the trial judge.

The appellant argued that a single judge lacked jurisdiction to hear the motion and that he was unable to afford the full payments.

The single judge of the Court of Appeal held that he lacked jurisdiction, as a stay would effectively dispose of the appeal and thus required a panel of three judges under Rule 61.16(2.2) and s. 140(5) of the Courts of Justice Act.

In any event, the judge would have dismissed the motion on the merits, as the appellant had provided an uncontradicted explanation for his inability to pay the full amount and was not simply refusing to comply.

The motion was dismissed with no order as to costs.

The appellant appealed from a judgment dismissing her motion.

The Court of Appeal agreed with the motion judge that the appellant had not presented the proper material for a Rule 14B motion.

The appeal was dismissed.

The appellant appealed a trial decision regarding spousal support and the finding of an unconditional gift of a one-half interest in joint bank accounts and investment funds.

The Court of Appeal dismissed the appeal, refusing to admit fresh evidence and finding no error in the trial judge's factual findings or application of legal principles.

The trial judge's calculation of the gift amounts and the quantum of spousal support were upheld.

The appellant requested that the Court of Appeal substitute the terms of access previously ordered.

The court declined, finding that the ordered terms were not unworkable and that the appellant's request for a substantially extended timesharing arrangement amounted to a marked deviation from the original order.

The court held that the appellant must bring a motion in the trial court to vary access.

The request was dismissed.

The mother obtained a full-time teaching job in Cornwall and sought to relocate the three children from Ottawa.

The application judge granted the move.

The father appealed.

The Court of Appeal allowed the appeal, finding the application judge failed to conduct a full and sensitive inquiry into the best interests of the children, misapprehended the joint custody arrangement, and ignored an independent psychological assessment.

A new hearing was ordered.

The appellant appealed a trial judgment regarding the equalization of net family property.

The trial judge found that the appellant had a beneficial interest in a property that had value on valuation day, despite not having legal title.

The Court of Appeal upheld the trial judge's finding, noting that the definition of 'property' in the Family Law Act is broad enough to include a beneficial interest.

The appeal was dismissed with costs.

The appellant appealed an order setting aside a previous over-the-counter order that had rectified a settlement agreement.

The appellant claimed she made a unilateral mistake in her offer to settle, which the respondent had accepted.

The Court of Appeal dismissed the appeal, finding no basis to conclude that the respondent knew or ought to have known about the unilateral mistake, and therefore no grounds existed to set aside the settlement order.

The appellant mother brought a motion for a stay of two lower court orders pending her appeal.

The respondent father brought a cross-motion for security for costs.

The Court of Appeal granted the stay, finding that the appellant had an arguable appeal and that the balance of convenience and irreparable harm favoured her.

The Court ordered that neither party remove the child from Ontario, required the child's passport and birth certificate to remain with the Registrar, and maintained the status quo of alternating weekly physical custody.

The respondent's motion for security for costs was dismissed.

The appellant husband was ordered to discharge the mortgage on the matrimonial home and arrange substitute security for a joint line of credit.

He failed to comply, defaulted on payments, and made a voluntary assignment in bankruptcy.

The motions judge found him in contempt and sentenced him to six months' imprisonment.

On appeal, the appellant argued that compliance would constitute an unlawful preference under bankruptcy legislation and that the order was for the payment of money, precluding a contempt finding.

The Court of Appeal dismissed the appeal, holding that the appellant's late invocation of bankruptcy was an impermissible collateral attack on a valid court order, and that the order did not require the payment of money.

The six-month sentence was upheld due to the appellant's continuous and cavalier non-compliance.