Family and Matrimonial Law - ONCA

Counsel requested clarification regarding the disposition of costs following an appeal decision that directed a new trial on the issue of unjust enrichment.

The Court of Appeal issued a costs addendum clarifying that the costs of the first trial are left to the discretion of the judge hearing the new trial.

The appellant appealed a trial judge's decision confirming the validity of a Trust Agreement.

She argued the agreement defeated her interests in the matrimonial home under the Family Law Act, lacked certainty of subject matter, was signed under duress, and that the trial judge was functus officio when issuing supplementary reasons.

The Court of Appeal dismissed the appeal, finding the property was not a matrimonial home when the agreement was executed, the trust subject matter was certain, the trial judge was not functus officio as no order had been entered, and there was no basis to interfere with the finding that duress was not established.

The parties separated after 23 years of marriage.

The husband, a tenured professor, had custody of their three children.

The wife, a contract teacher, made direct financial contributions to the children's expenses but did not pay periodic child support.

The husband appealed the trial judge's dismissal of his claim for retrospective child support and the award of prospective spousal support to the wife for a limited term of five years.

The Court of Appeal dismissed the appeal regarding child support, finding the trial judge did not err in considering the wife's direct contributions.

The Court allowed the cross-appeal in part, varying the spousal support award to $950 per month payable indefinitely, recognizing the economic merger of the parties' interests over the long marriage.

The appellant father appealed the dismissal of his application to vary a consent custody order to seek joint custody and an equal parenting schedule.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusion that there was no material change in circumstances.

The court also upheld the application judge's decision to increase the father's weekday contact rather than imposing an equal parenting schedule, noting the judge properly considered the relevant factors including enhancing contact between the child and the father's new family.

The appellant appealed a motion judge's finding of contempt, a six-month custodial sentence, and an order striking his variation proceedings.

The contempt arose from the appellant's blatant and concerted attempts to hide his RRSPs to avoid paying spousal support.

The Court of Appeal dismissed the appeal, finding no error in the contempt finding and concluding the sentence was fair given the appellant's refusal to purge his contempt.

The wife appealed a trial judge's decision staying her Ontario application for equalization of net family property and spousal support on the basis that Greece was the more appropriate forum.

On appeal, the wife sought to introduce fresh evidence consisting of an application the husband filed in Greece after the Ontario trial, which contradicted his previous evidence regarding the parties' assets.

The Court of Appeal admitted the fresh evidence under the Palmer test, finding it radically changed the parameters of the property issues.

The court allowed the appeal, set aside the stay, and ordered the proceedings to continue in Ontario.

The appellants appealed a motion judge's order regarding custody and parenting time under the Divorce Act.

The Court of Appeal found no error in the motion judge's interpretation of the 'maximum contact' principle under s. 17(a) of the Divorce Act.

The court noted that the allocation of parenting time was consistent with the appellants' own submissions, albeit made on the assumption they would be the custodial parents.

Minor factual errors by the motion judge were not overriding.

The appeal was dismissed with costs fixed at $13,000.

The appellant mother appealed a decision granting the respondent father's application under the Hague Convention to return their child to Australia.

The mother opposed the return under Article 13(b), alleging the father was a violent criminal and drug addict, and that returning the child would expose him to a grave risk of psychological harm.

The application judge ordered the child's return without hearing viva voce evidence.

The Court of Appeal dismissed the appeal, holding that the application judge correctly applied the stringent test under Article 13(b) and that oral evidence was not required because there was no realistic possibility it would establish the defence.

The matter was remitted to determine undertakings prior to the child's return.

The mother travelled to Ontario from Florida with the parties' child and subsequently refused to return.

The father commenced a Hague Convention application for the child's return eight months later.

The motion judge dismissed the application, finding the father had acquiesced to the retention due to his delay.

The Court of Appeal allowed the father's appeal, holding that an eight-month delay within the one-year window provided by Article 12 of the Hague Convention does not constitute clear and cogent evidence of unequivocal acquiescence under Article 13(a).

The child was ordered to be returned to Florida.

The appellant appealed an order dismissing his motion to expunge child support arrears that accrued while he was unemployed.

The motion judge had found the appellant intentionally unemployed and imputed income to him based solely on affidavit evidence without cross-examination.

The Court of Appeal allowed the appeal, holding that the motion judge erred in rejecting the appellant's uncontradicted affidavit evidence regarding his diligent job search without a trial or cross-examination.

The matter was remitted for a rehearing.

In a costs endorsement following an appeal, the Court of Appeal noted that success in the proceedings was divided.

The appellant succeeded on his appeal to the Court of Appeal, but the Divisional Court had correctly held it lacked jurisdiction to hear the appeal.

Considering the divided success and the disparity in income between the parties, the Court ordered no costs for the proceedings in either court.

The lower court's costs order was set aside and reserved to the judge hearing the application to vary.

In a supplementary endorsement, the Court of Appeal addressed the costs of the appellant's unsuccessful stay motion, which had been reserved to the panel hearing the appeal.

The court awarded the respondent costs of the motion fixed at $5,000, inclusive of disbursements and GST.

The appellant appealed a trial judgment regarding child and spousal support, custody and mobility, and equalization.

The appellant argued the trial judge erred in calculating his income, allowing the respondent to relocate to New York with the children, discounting family loans for equalization purposes, and managing the trial proceedings.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings, application of the mobility test, or valuation of the debts.

The court also held that while the trial judge erred in restricting cross-examination on an expert report, it did not deprive the appellant of a fair trial.

The appellant husband appealed a trial judgment regarding the valuation date for his business, the quantification of the equalization payment, prejudgment interest, and a ten percent premium on legal costs awarded to the respondent wife.

The Court of Appeal upheld the trial judge's findings on the valuation date, equalization payment, and prejudgment interest, finding no palpable and overriding error.

However, the Court set aside the ten percent premium on costs, noting no authority for such an order in a family law context where substantial costs had already been awarded.

A cross-appeal regarding child support was allowed on consent.

The appellant father appealed an order dispensing with his consent to allow the respondent mother to travel to Israel with their two young children.

The mother had been diagnosed with a terminal illness and wished to visit her family.

The Court of Appeal found that the mother's terminal illness constituted a material change in circumstances under s. 17(5) of the Divorce Act.

The court upheld the decision that the trip was in the children's best interests but varied the order to include strict conditions regarding travel safety, medical insurance, and a 21-day limit due to the unstable situation in Israel.

The mother, who had primary residence of the children under a joint custody agreement, appealed a motions judge's order refusing to permit her to relocate with the children from Delhi to Tecumseh for new employment.

The Court of Appeal allowed the appeal, finding the motions judge erred in principle by failing to give sufficient consideration to the custodial parent's views, the children's wishes, and the enhancement of the mother's ability to care for the children, as required by Gordon v. Goertz.

The mother was permitted to move, with an order to share travel for the father's access.

The appellant husband appealed the dismissal of his motion for judgment based on an alleged settlement between the parties.

The Court of Appeal found that the wife's Offer to Settle and the husband's acceptance did not constitute a binding contract, as the offer left open the future negotiation of a shareholders agreement and was conditional upon further documentation.

The appeal was dismissed with costs.

The appellant father appealed findings of contempt and a suspended sentence imposed after he unilaterally removed his child to Bermuda, frustrating the respondent mother's access rights.

The father argued his appeal was timely under the Criminal Appeal Rules.

The Court of Appeal held that civil contempt proceedings arising from matrimonial litigation are governed by the Rules of Civil Procedure, rendering his appeal of the contempt findings out of time.

The appeal of the sentence conditions and the mother's cross-appeal regarding child support and costs were both dismissed.

The appellant husband appealed a motion judge's finding that a binding settlement had been reached in a divorce proceeding.

The parties had exchanged correspondence regarding an equalization payment, the payment of the children's lawyer's fees, and the handling of life insurance policies.

The Court of Appeal upheld the motion judge's finding that the parties had reached a consensus ad idem on all essential terms, noting that the husband's self-serving affidavit did not raise a triable issue.

The appeal was dismissed with costs awarded to the respondent wife.

The appellant husband appealed a trial judgment granting corollary relief to the respondent wife.

The trial judge had ordered the husband to pay child support for the wife's child, a compensatory sum for property improvements, and $8,000 based on a post-separation letter promising financial help.

The Court of Appeal upheld the child support and compensatory sum, and dismissed the husband's new claim for occupation rent.

However, the Court allowed the appeal in part to strike the $8,000 payment, finding the letter was not a valid domestic contract, was too vague, and its conditions were unmet.