Family and Matrimonial Law - ONCA

The appellant appealed from an uncontested family law trial judgment ordering him to pay equalization of net family property, a lump sum spousal support payment, and costs.

The appellant's application had been struck prior to trial for repeated failure to make financial disclosure and non-compliance with court orders.

The Court of Appeal found no error in the trial judge's equalization calculations or in the imputation of $200,000 annual income to the appellant for spousal support purposes, both of which were based solely on the respondent's evidence.

The court also found the trial judge's reasons were sufficient given the absence of competing evidence.

The appeal was dismissed with costs of $25,000 to the respondent.

The husband's father transferred common shares in his company to the husband as part of an estate freeze.

The trial judge found the shares were not a gift and included them in the husband's net family property for equalization.

The Court of Appeal reversed this finding, holding that the shares were a valid gift despite the father's commercial motivations and the husband's lack of knowledge of certain conditions attached to the transfer.

However, the Court of Appeal ordered a new trial because the trial judge failed to determine the wife's claim for a beneficial ownership interest in the shares via constructive trust before calculating the equalization payment.

The appellant appealed a decision finding that he had repudiated an accepted offer to settle a family law dispute.

The appellant argued that his proposed separation agreement did not contain important changes or additions to the accepted offer.

The Court of Appeal disagreed, finding that the appellant's proposal to transfer control of the matrimonial home and another property to himself without specifying trust terms or time limitations was a fundamental alteration.

The court upheld the motion judge's application of the doctrine of repudiation and dismissed the appeal.

The appellant father appealed a trial judgment granting the respondent mother sole custody of their youngest child, with no access for the father or the older siblings.

The trial judge also issued a restraining order against the father and awarded the mother full recovery costs of over $320,000 due to the father's bad faith and persistent disobedience of court orders.

The Court of Appeal dismissed the appeal, finding overwhelming evidence that the father had alienated the older children from the mother and that a no-access order was necessary to protect the youngest child's best interests.

The restraining order and costs award were also upheld.

The appellant appealed an order requiring him to pay a $185,000 fine for failing to produce financial documents in a family law proceeding.

The respondent brought a motion to quash the appeal, arguing the order was interlocutory and therefore required leave to appeal to the Divisional Court.

The Court of Appeal agreed, finding that the order did not finally dispose of any issue in the proceeding and was not a contempt order.

The appeal was quashed.

Following the appellant's partial success on appeal regarding the calculation of the equalization payment, the court addressed costs.

Because the appeal increased the property award beyond the respondent's offer to settle, the court set aside the trial judge's costs award of $82,822 in favour of the respondent, ordering each party to bear their own costs at trial due to divided success and relative means.

The appellant was awarded $5,000 in costs for the appeal.

The appellant appealed an order regarding the care of her children, arguing that her trial counsel was incompetent for conceding that her son was in need of protection.

The Court of Appeal upheld the lower court's finding that counsel was not incompetent given the substantial medical evidence, and that no miscarriage of justice occurred.

The court also found no error in the decision not to place the other child in the appellant's care.

The appeal was dismissed.

The appellant father appealed a motion judge's order regarding child and spousal support.

He argued that the motion judge erred in allowing section 7 post-secondary education expenses such as bus passes, food, and laundry, and that spousal support should have been terminated due to a material change in circumstances.

The Court of Appeal dismissed the appeal, finding the section 7 expenses to be necessary and reasonable, and holding that the motion judge appropriately exercised his discretion to postpone spousal support payments until the appellant fulfilled his child support obligations.

The appellant appealed an order finding she wrongfully removed her child from Florida and directing the child's return.

She argued the application judge erred in admitting expert evidence on Florida law, applying the wrong standard of proof, and considering post-removal paternity testing to find the respondent had custody rights.

She also sought to introduce fresh expert evidence on appeal.

The Court of Appeal dismissed the appeal, finding the expert evidence was unchallenged at the hearing and the application judge correctly determined the respondent had custody rights at the time of removal.

The fresh evidence was not admitted as it failed the due diligence test and would not have affected the outcome.

The appellant appealed an order dismissing his motion to vary child support and declaring certain family law rules unconstitutional.

The motion judge had also declared the appellant a vexatious litigant under s. 140 of the Courts of Justice Act, requiring him to seek leave before commencing further proceedings and to post $5,000 as security for costs.

The Court of Appeal dismissed most of the appeal, finding the issues were res judicata and no change in financial circumstances was proven.

However, the appeal was allowed in part to delete the $5,000 security for costs requirement, which the court found unreasonable.

The appellant appealed an order refusing a motion to extend the time to appeal a child protection order and dismissing the appeal.

The Court of Appeal found no error in the motion judge's conclusion that there was an unexplained delay in ordering transcripts and no merit to the appeal.

The court emphasized that delay is of particular concern in child protection proceedings where expeditious resolution is in the child's best interests.

The appeal was dismissed with costs awarded to the respondents.

The appellant failed to comply with an order to post $15,000 as security for costs before the appeal hearing.

The court noted a long pattern of non-payment of spousal and child support, with arrears exceeding $27,000.

The appeal was dismissed with costs fixed at $15,000.

The appellant father appealed a decision setting aside a trial judgment that had granted him custody of the child and ordering a new trial.

The appeal judge had found that the trial was unfair due to the trial judge recalling the mother to the stand on her own motion, a ten-month delay in rendering a decision, and the trial judge reopening the trial on her own motion for further evidence.

The Court of Appeal found no error in the appeal judge's conclusion that neither party received a fair trial and dismissed the appeal, ordering costs of $4,000 to the respondent.

The appellant appealed a trial judgment awarding the respondent $33,000 as compensation for her contribution to the family residence.

The Court of Appeal found no error in the trial judge's findings that the residence was a gift from the appellant's father to the appellant, and that the respondent had contributed to its increased value.

The appeal was dismissed with costs fixed at $20,000 for the appeal and $10,000 for the trial.

Following the release of the main appellate reasons on December 24, 2002, the Court of Appeal issued an addendum granting the costs of the appeal to the appellant, fixed in the amount of $6,000.

The appellant cohabited with the deceased for 18 months before he was killed in a motor vehicle accident.

She sued the driver for damages under s. 61 of the Family Law Act.

The definition of "spouse" in s. 29 of the Act requires three years of cohabitation.

The appellant challenged this definition under s. 15(1) of the Charter, arguing it discriminates against common-law partners who have cohabited for less than three years.

The Court of Appeal upheld the dismissal of her claim, finding that cohabiting for less than three years is not an analogous ground of discrimination under s. 15(1) of the Charter, as it is a fluid and transitory status rather than an immutable characteristic.

Before marriage, the respondent wife purchased land using a housing loan under the Income Tax Act and built a house that became the matrimonial home.

Upon separation, the husband argued that the housing loan should be deducted from the marriage date value of the wife's property when calculating her net family property, which would increase her net family property.

The Court of Appeal upheld the trial judge's decision that the housing loan, like a mortgage, should not be deducted from the marriage date value of the property, as doing so would impose an unfair double burden on the spouse bringing the matrimonial home into the marriage.

The appellant mother appealed a motions judge's decision denying her request for a declaration that Ontario had jurisdiction to entertain custody, access, and support proceedings relating to the parties' child.

The parties had lived primarily in Quebec, but the mother moved to Ontario with the child upon separation.

The Court of Appeal upheld the motions judge's finding that the child was not habitually resident in Ontario at the time the application was commenced, as there was no agreement or acquiescence by the respondent father.

The court also found no error in the conclusion that the balance of convenience favoured Quebec.

The appellant mother sought a stay of an order requiring her to return her two children to Trinidad and Tobago.

The mother had brought the children to Canada and applied for refugee status.

The respondent father obtained an ex parte custody order in Trinidad and subsequently brought an urgent motion in Ontario for the children's return.

The motion judge heard the matter in the absence of the mother's counsel, who had requested a short adjournment after receiving voluminous materials late.

The Court of Appeal granted the stay pending appeal, finding that the mother was denied procedural fairness and the right to be heard, which undermined the rules of natural justice.

The appellant husband appealed a family law judgment and sought to introduce fresh evidence to establish a reasonable apprehension of bias by the trial judge.

The proposed evidence included the trial judge's personal divorce file and an affidavit from the appellant's trial counsel regarding out-of-court remarks made by the judge.

The Court of Appeal dismissed the motion to admit fresh evidence, finding it did not meet the threshold of relevancy and did not create a reasonable apprehension of bias.

The appeal on the merits regarding the trial judge's directions and determination of a retirement date was also dismissed.