Family and Matrimonial Law - ONCA

The appellant sought to appeal an interim spousal support order made under the Divorce Act as of right, arguing that section 21(1) of the Divorce Act provides a direct right of appeal that is paramount over the leave requirement in section 19(1)(b) of the Courts of Justice Act.

The Court of Appeal held that section 21(6) of the Divorce Act requires appeals to be asserted according to the ordinary procedure of the province, which in Ontario includes the leave requirement.

The court found no conflict between the federal and provincial legislation, concluding that the doctrine of paramountcy was not engaged and leave to appeal was required.

The appellant and respondent, former common-law partners, resolved their family law proceedings through mediation/arbitration.

The appellant subsequently issued a civil statement of claim against the respondent and her counsel, alleging fraudulent misrepresentation regarding child support and financial disclosure, and seeking damages.

The motion judge struck the statement of claim as frivolous, vexatious, an abuse of process, and barred by res judicata.

The Court of Appeal dismissed the appeal, holding that the civil action was an abuse of process attempting to circumvent the family law statutory scheme, an impermissible collateral attack on existing family court orders, and barred by cause of action estoppel and the appellant's prior consent to the settlements.

The appellant mother appealed a decision making her older child a Crown ward with no access.

She sought to introduce fresh evidence, arguing that the expert witness, Dr. Benoit, gave contradictory evidence in a subsequent trial regarding her younger child and lacked expertise on the effects of Cortisol.

The Court of Appeal dismissed the fresh evidence motion, noting the lack of expert evidence to support the appellant's claims.

The court upheld the trial judge's reliance on Dr. Benoit's parental capacity assessment and dismissed the appeal, emphasizing the child's need for stability in a potential adoptive home.

The appellant father appealed a trial decision awarding sole custody of their five-year-old daughter to the respondent mother.

The trial judge had found that the parties had intense conflict and no effective communication to permit co-parenting.

The Court of Appeal dismissed the appeal, finding no material error in the trial judge's application of the best interests of the child test and her conclusion that joint custody was inappropriate given the parents' inability to cooperate.

The appellant appealed a motion judge's decision setting aside a final order based on Minutes of Settlement in a family law dispute.

The parties had negotiated a settlement, but there was a dispute over whether a binding agreement had been reached before the respondent entered a residential treatment program.

The Court of Appeal upheld the motion judge's finding that the parties were not ad idem and that the June Minutes of Settlement were no longer open for acceptance when the appellant signed them in October.

The appeal was dismissed.

In a family law dispute involving allegations of hidden assets and non-disclosure, the wife sought business records from a corporation formerly co-owned by her husband.

The husband had sold his interest to his business partner, who then refused access to the records.

The motion judge ordered the third-party partner and corporation to disclose the records under Rule 19(11) of the Family Law Rules.

On appeal, the Court of Appeal held that while the motion judge erred by relying on previous disclosure orders against the husband rather than making an independent determination of unfairness, the disclosure order was nonetheless justified.

The appeal was dismissed, but the husband was ordered to reimburse the third parties for their reasonable expenses in complying with the order.

The appellant father appealed a summary judgment order granting custody of his two children to the respondent maternal grandparents.

The children's mother had died, and the children had lived with their grandparents for most of the past ten years, expressing a strong desire to remain with them.

The Court of Appeal dismissed the appeal, finding no genuine issue of fact requiring a trial and agreeing that the motion judge properly prioritized the best interests of the children over the father's biological connection.

The court also declined to admit fresh evidence.

The appellant appealed a trial judge's decision placing the child with the mother under the supervision of the Children's Aid Society.

The Court of Appeal found no error in the trial judge's conclusion that this placement was in the best interests of the child, and that placement with the appellant was not.

The appeal was dismissed.

The appellants, estate trustees for the deceased aunt of a party to a family law action, appealed the dismissal of their motion to set aside a family law trial judgment.

The trial judgment had awarded the respondent a one-half interest in a property previously held in joint tenancy by her ex-husband and the deceased aunt.

The aunt died before trial, and her interest passed to the ex-husband by right of survivorship.

The Court of Appeal dismissed the appeal, finding that the estate trustees failed to move in a timely manner, having waited until after the ex-husband's appeal was dismissed before asserting the estate's rights.

Furthermore, the estate's claim lacked potential merit as the deceased had never taken steps to sever the joint tenancy during her lifetime.

The parties reached a settlement agreement prior to the disposition of the appeal.

The Court of Appeal allowed the appeal and set aside the lower court's judgment in accordance with the terms of the settlement.

The appellant solicitor appealed a decision permitting the assessment of her accounts by the respondent client.

The solicitor argued the client failed to request the assessment within the one-month statutory period under the Solicitors Act and missed the 15-day deadline stipulated in their retainer agreement.

The Court of Appeal dismissed the appeal, upholding the application judge's finding that the final account was delivered later than the solicitor claimed.

The Court also held that public policy prevents solicitors and clients from contracting out of the statutory rights granted to clients to have their accounts assessed within the statutory timeframe.

The appellant appealed a trial judgment regarding the matrimonial home, spousal support, and child support.

The Court of Appeal found no basis to interfere with the trial judge's dispositions, finding them fair and reasonable.

The parties agreed on the equalization amounts from the sale of the matrimonial home.

The appeal was dismissed with costs awarded to the respondent.

The father appealed an order refusing to vary custody and access, and varying child support and costs.

The mother cross-appealed seeking additional retroactive child support for 2003.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding no error in the application judge's conclusions that there was no change in circumstances regarding custody and access, and that the limitation on retroactive support was within the judge's discretion given the father's other financial obligations.

The appellant wife appealed a summary judgment dismissing her claims for spousal support and an extension of time to claim a further equalization payment.

The parties had previously signed a separation agreement and an addendum waiving spousal support, but the wife suffered from severe mental illness and was on a disability pension.

The Court of Appeal allowed the appeal, finding that the motions judge erred by applying Rule 20 to the complex analysis required by Miglin v. Miglin.

The Court also held that the motions judge improperly decided credibility issues and reversed the burden of proof regarding the limitation period extension under section 2(8) of the Family Law Act.

The appellant husband appealed a trial decision that imputed his income for child support purposes after he abandoned his successful independent electrical contracting business for a lower-paying salaried position.

The trial judge found him intentionally underemployed under s. 19(1) of the Federal Child Support Guidelines, averaged his previous three years of corporate income, and grossed it up to account for the lower corporate tax rate he paid compared to a salaried employee.

The Court of Appeal dismissed the appeal, upholding the finding of intentional underemployment and the gross-up of corporate income to ensure consistent treatment of spouses under the Guidelines.

The respondent wife's cross-appeal for increased spousal support was also dismissed.

The appellants appealed and the respondent cross-appealed a trial judgment regarding the equalization of net family properties.

The issues on appeal included the valuation of a property known as Block 108, the trial judge's finding of undisclosed assets, the deduction of notional income tax on the deemed disposition of shares, and the beneficial ownership of various properties.

The Court of Appeal found no basis to interfere with the trial judge's findings of fact, assessments of credibility, or exercise of discretion.

Both the appeal and cross-appeal were dismissed.

The appellant father appealed an order requiring him to pay child support in accordance with the Ontario Child Support Guidelines.

A 1985 court order had previously required him to pay a $4,000 lump sum for child support and denied him access.

The mother later married and her new husband assumed financial responsibility for the child.

Following her separation from the new husband, the mother applied for child support from the appellant.

The Court of Appeal dismissed the appeal, holding that the enactment of the Guidelines created an automatic right to vary pre-existing child support orders without needing to prove a material change in circumstances.

The Court also found that while the prior arrangements could constitute 'special provisions' under s. 37(2.3) of the Family Law Act, it would not be inequitable to apply the Guidelines in this case.

The appellant appealed an order dismissing his application to vary support.

The Court of Appeal found that the motion judge erred in rejecting the appellant's medical evidence, which indicated he was unable to work full-time.

Given the conflicting evidence regarding the appellant's ability to work, the motion judge should have ordered the trial of an issue.

The appeal was allowed, the order set aside, and the trial of an issue ordered.

The appellant mother appealed a motions judge's decision denying her request to relocate from Ottawa to Oakville with her five-year-old daughter.

The Court of Appeal found the motions judge erred by refusing to admit fresh evidence regarding the mother's pregnancy and changed family circumstances, refusing to permit cross-examination of the court-appointed assessor, and delegating the mobility determination to the assessor without independently applying the Gordon v. Goertz factors.

The appeal was allowed, permitting the mother to relocate with the child.

The appellant appealed judgments regarding custody, access, child support, and property division, as well as orders preserving a boat pending appeal.

The Court of Appeal dismissed the appeals, finding no error in the trial judge's decisions on custody, access, or the imputation of income for child support.

The court granted minor variations to allow specific set-offs against child support arrears but otherwise upheld the trial judge's orders, including the requirement to sell the boat to satisfy arrears and costs.